Opinion
No. SC12–763.
2012-09-21
Jason Andrew SIMPSON, Petitioner(s) v. STATE of Florida, Respondent(s).
Jason Andrew Simpson, a prisoner under sentence of death, has filed a Petition for Review of Non–Final Order in Death Penalty Postconviction Proceeding or, Alternatively, Petition for Writ of Prohibition in this Court. We have jurisdiction. SeeFla. R.App. P. 9.142(c); art. V, § 3(b)(7), Fla. Const. In the petition, Simpson seeks review of the trial court's order denying his motion to disqualify the trial judge in his postconviction proceeding below.
This is Simpson's initial motion for disqualification. “The judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” Fla. R. Jud. Admin. 2.300(f). “Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Rodriguez v. State, 919 So.2d 1252, 1274 (Fla.2005). “If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.” Fla. R. Jud. Admin. 2.300(f). Whether the motion is legally sufficient is a question of law, and our review is de novo. Stein v. State, 995 So.2d 329, 334 (Fla.2008).
Simpson seeks disqualification of the trial judge based on statements made by the trial judge when denying Simpson's motion for appointment of handwriting expert to determine whether the initials of Officer Harms were forged on a chainof-custody form for evidence. Simpson alleges that the trial judge denied the motion, despite the existence of competing affidavits, one from Officer Harms and one from a handwriting expert. Specifically, without holding an evidentiary hearing, the trial judge stated that Officer Harms “has filed a piece of paper under oath for Court” and that he was “not going to find that the detective has committed perjury.” In the order denying the motion, he stated that he “refus[ed] to find that Ms. Harms is being untruthful.” Simpson filed a motion for reconsideration or clarification, suggesting that perhaps the trial judge had overlooked the handwriting expert's affidavit. The trial judge denied the motion for reconsideration or clarification, but clarified that he did consider the handwriting expert's affidavit. Within 10 days of that order, Simpson filed a motion to disqualify the trial judge, which was denied as legally insufficient.
We conclude that Simpson's motion to disqualify was timely as it was filed within 10 days of the order clarifying that the trial judge had considered both affidavits. We also conclude that Simpson's motion was legally sufficient. The issue before this Court is not whether the trial judge's denial of the motion for handwriting expert should be affirmed on the merits, but whether the statements made by the trial judge when denying the motion, despite the existence of competing affidavits, would give rise to a well-founded fear of bias.
The trial judge's statements when denying the motion for handwriting expert, along with the trial judge's clarification that he had considered the handwriting expert's affidavit, would create “in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial,” Rodriguez, 919 So.2d at 1274, especially since Simpson raised claims of misconduct and dishonesty by law enforcement officers in his pending postconviction motion. Given the existence of competing affidavits and the statements made by the trial judge, it would appear to a reasonably prudent person that the trial judge had made a credibility determination based on the fact that Officer Harms was a law enforcement officer in order to credit her affidavit over that of the handwriting expert. The trial judge stated that he was “not going to find that the detective has committed perjury” and he “refus[ed] to find that Ms. Harms is being untruthful.” This was done without the opportunity to observe Officer Harms in an evidentiary hearing and in the absence of an evidentiary hearing to resolve disputed facts.
Accordingly, we grant Simpson's petition.
It is so ordered. POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.