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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
GEORGE ZIMMERMAN, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________/ RESPONSE TO PETITION FOR WRIT OF PROHIBITION COMES NOW, the Respondent, State of Florida, pursuant to this Court’s August 14, 2012, order to respond and states: PROCEDURAL AND FACTUAL STATEMENT Petitioner is charged by information with one count of second degree murder for the shooting death of Trayvon Martin on February 26, 2012. (Pet. Appx. Page 1). Petitioner filed a Motion to Disqualify Trial Judge on April 16, 2012, pursuant to Florida Rule of Judicial Administration 2.330(d)(2), i.e., that the judge is either an interested party to the matter, related to an interested party, related to counsel, or “is a material witness for or against one of the parties to the cause.” (Appendix A). In it, Petitioner argued that the first assigned judge, who is married to a law partner of the Nejame Law Firm, should be disqualified because Mark Nejame had been consulted by Petitioner and his family prior to Petitioner hiring his current attorney. Id. The first trial judge granted the motion on April 18, 2012, finding the cumulative effect of events provided a legally sufficient basis for the Court to CASE NO. 5D12-3198
grant the motion. (Appendix B). However, the first trial judge found the individual bases argued, i.e., that the court’s husband is a partner at the Nejame Law Firm and Mark Nejame is acting as a legal analyst for CNN, were legally insufficient. (Appendix B). Moreover, the allegation that Mark Nejame spoke to Petitioner and his family and received confidential information was also legally insufficient as Petitioner admitted he had no knowledge of any communications between Mark Nejame and the judge’s spouse. Id. On April 20, 2012, Petitioner was before the successor judge, Circuit Court Judge Kenneth R. Lester, Jr., upon a motion to set bond filed by Petitioner. (Pet. Appx. Page 65). At the hearing, counsel for Petitioner advised the court that he was providing the court with Petitioner’s current passport which was the only
passport he had. (Pet. Appx. Page 363). Petitioner’s wife testified after being sworn. (Pet. Appx. Pages 367-368). Shellie Zimmerman testified that she had no income and no major assets that could be liquidated to assist in raising money for a bond. (Pet. Appx. Pages 370-371). She also was aware that they were seeking to have her husband declared indigent because they had no financial means to assist in paying for costs. (Pet. Appx. Page 371). The State asked Shellie Zimmerman about Petitioner’s ability to make bond amount. Petitioner’s wife said they had no money. (Pet. Appx. Page 382). The State inquired about the website, but Shellie Zimmerman indicated she currently did not know how much money had been raised; that her brother-in-law would know. (Pet. Appx. Page 382). She also denied even having an estimate of the 2
Appx. the accountant explained that a check for $122. Pages 65. on various motions. Page 383). they did have money.480. Pages 95-96).00. (Pet. and there was $150. Page 143). Appx.97). dated April 25.483). (Pet. Appx. The trial judge.481. approximately $150. The State argued that there was a change in circumstances involving the bond and asked that the court address the matter as the family had represented they had no money when.amount of money raised in the website or having spoken with her brother-in-law about the money. Appx. 3 1 . At a hearing held on April 27.000.00 was available that was not disclosed to the court by the family. while At the hearing held on June 29. Page 98). (Pet. However. Petitioner had not divulged this information to counsel until after the bond hearing. Pages 96. the judge set the bond at $150. 2012. 2012. was deposited into counsel’s trust account on April 27. (Pet. Counsel explained that the money had been placed in a trust account under his control. Appx.1 (Pet. Appx. in fact.393. (Pet.000.486. according to counsel. (Pet. 2012. 2012.000.96. After argument of counsel. bond hearing.00. Page 96). Page 97). The difference between the total amount transferred from the PayPal account into the Zimmerman’s accounts and the money deposited into counsel’s trust account is $49. Appx. Page 144). Appx.00 available to the family as of last Friday.475. (Pet. 2012. Appx. counsel for Petitioner disclosed the fact that approximately $204. Counsel further advised the court that when Petitioner was before the court at the April 20.000. (Pet.00 had been donated to Petitioner via the internet into a PayPal account.
regarding a gag order. (Appendix D. the State filed a motion to revoke bond.recognizing that false websites are created during disasters and such. Page 99). the date of any payments made to the account. In it. On June 1. (Appendix D). (Appendix D. (Appendix C). She also had testified on cross- examination that she was aware of the website but did not know the amount of money that had been collected. The State set forth Shellie Zimmerman’s testimony at the bond hearing wherein she testified under oath that she and her husband had no financial means or assets they could liquidate to assist in paying for a bond. The trial judge entered an order on April 30. the State cited 4 to transcript excerpts of . the trial court noted that documents with protected information should be filed in redacted form for the public record and in unredacted form under seal for in camera review. Pages 99-100). Id. Appx. (Pet. the State alleged that Petitioner and his family members misled the trial judge as to his possession of a United States passport as well as his and his family’s financial circumstances. Furthermore. Page 4). and who has authority on the account. The court was unsure of its authority to order Petitioner to deposit or move any funds and needed to know who has authority over the account. hearing. (Pet. 2012. asked counsel to discover the genesis of the account. 2012. (Appendix D). (Appendix C). who was in charge of the account. The judge instructed the defense to turn over that information to the State. Appx. 2012. Pages 3-4). referencing these matters addressed at the April 27. In it.
at which the State’s motion to revoke bond was addressed. Pages 4-6). in fact. through his attorney (who the State was not alleging was privy to what Petitioner was doing). on April 19. (Appendix D. Petitioner had discussed with his wife the amount of money in the website account and that it was transferred into Petitioner’s credit union account and then. Appx. Petitioner possessed a second valid passport. Id.000. 2012. According to the credit union statements. The State pointed out that Petitioner also represented to the court.000.recorded jail conversations prior to the bond hearing between Petitioner and his wife. into Shellie Zimmerman’s personal account. A hearing was held on June 1. The judge noted its surprise that the State had not filed anything against Petitioner’s wife as there was no doubt she was aware of 5 . The State further alleged that all of this occurred prior to the sworn bond hearing testimony on behalf of Petitioner that he was indigent and his wife had no money. While incarcerated at the Seminole County Jail. (Pet. Id. The State also contended Petitioner and his wife spoke in code in order to disguise what they were doing. at Petitioner’s direction.00 based upon false representations by Petitioner and his family. that he was turning in his United States passport when. Id. Pages 236-349). Page 7). The State asserted that Petitioner intentionally deceived the court with the assistance of his wife. 2012. The State asked that the judge revoke the bond set at $150. Shellie Zimmerman’s account reflected over $135. Id. or increase the bond substantially. Id.00 (Appendix D.
Page 350). At the hearing. Appx. The judge stated that Petitioner was not entitled to sit quietly allowing his wife to testify falsely or his attorney to unknowingly make misrepresentations. On June 11. an order revoking bond was rendered based on Petitioner’s lack of candor. The trial court also informed Petitioner’s counsel that he could reset the case for a bond hearing to allow Petitioner to explain to the court what happened.000 bond on April 20. truthful and complete without omissions to the best knowledge of the defendant. The judge revoked the bond in that good cause existed based upon the material misrepresentations relied upon by the court. In the order. Pages 350-351).what had transpired. but she further testified that she had no knowledge of how much money was presently available in that 6 . Appx. the judge noted that in subsection 5 all information provided by a defendant in an attempt to obtain bond shall be accurate. 2012. 2012. Referencing Florida Rule of Criminal Procedure 3. which had collected online donations. charged with second-degree murder.131. Appx. Appx. was released on $150. (Pet. Id. April 15th. (Pet. April 16th and April 17th. the trial court held as follows: The Defendant. She testified under oath that she and the Defendant had no financial means and should be declared indigent for costs. Page 115). Page 352). (Pet. administered by her brother-in-law. Page 351). (Pet. the Court heard testimony regarding the Defendant’s financial means from Shelly Zimmerman. (Pet. the Defendant’s wife. Page 351). (Pet. as they were conducted on April 12th. Appx. The judge asked if the jail conversations predated the bond hearing and the State indicated they had. She acknowledged the existence of a legal fund. Appx.
the State alleged that. Neither the Defendant nor his wife mentioned the existence of this second passport during their testimony. To the contrary. the Defendant surrendered passport number 301813125. The State cited excerpts from recorded conversations made at the jail between the Defendant and his wife to support its assertions of deception. The Defendant gave limited testimony at the bond hearing on different matters. the evidence shows that. which had been issued on May 22. With regard to the Defendant’s present financial means. This was not disclosed at the bond hearing. contrary to the testimony provided at the bond hearing. the repeated 7 . The defense asserted that this was the Defendant’s only passport. Also. However. 2014. which had been issued on March 26.000 was transferred to the legal fund into the Zimmermans’ bank account. it was alleged that the Defendant was untruthful regarding his possession of a valid passport. she and the Defendant had discussed the amount of money in the fund and how to gain access to it. At the bond hearing. number 017355779. 2004 and expired on March 24. and had an expiration date of May 21. The State filed a Motion to Revoke Bond which was heard on June 1. It was also affirmatively represented that the Defendant had turned in his passport. based upon his prior violent history. 2002. The State argued against setting a bond for the Defendant on the basis that the circumstances of this case demonstrate that he is a serious threat to the community. approximately $135. 2012.fund. the State notes that they spoke “in code” to make it sound like they were talking about negligible sums of money. it was later discovered that the Defendant was actually in possession of another passport. At the hearing on the motion. in the five days prior to the bond hearing. It was issued as a replacement when the Defendant notified the Department of State that he had lost passport number 301813125. 2012. but did not contradict or supplement his wife’s testimony about his financial resources or possession of a passport.
In determining the reasonable bond amount. Had the Court been made aware of the true financial circumstances at the bond hearing. the Court exercised its discretion and set what was believed to be a reasonable bond. the bond decision might have been different. giving much weight to Petitioner’s lack of respect for the law or the integrity of the judicial process. Arthur. Page 117). The trial court weighed several factors both for and against revocation. The Court. A bond that a Defendant cannot afford is tantamount to no bond at all. 1980). based upon the information presented. While the Court would have been authorized under State v. (Pet. 390 So. he filed a second motion seeking bond. with the community’s safety if he were to be released. determined that $150. to be decided by the very same judge. Appx. (Pet. Petitioner made no objection to this order revoking bond and certainly did not thereupon seek recusal of the court. to keep the Defendant in custody without granting a bond. the Court balanced the Defendant’s right to be free from custody. The judge explained that this factor was dispelled based upon evidence from the Department of State. Instead.refusal to respect law enforcement’s directives. Appx. noting that the valid passport and bank account were relevant to Petitioner’s access to means of flight. Pages 115-116)(citation omitted). Id.000 was an appropriate bond to ensure the Defendant’s presence in court and also to protect the community. while still ensuring his appearance in court. 2d 717 (Fla. Id. and the fact that he is charged with killing an unarmed teenager. His financial status was a key factor in this balancing test. 8 . The trial judge revoked Petitioner’s bond. The Defendant was also allowed to leave the state and keep his location confidential in order to ensure his personal safety.
On April 17th. Page 154).00.000.000. (Pet. Petitioner had approximately $80.000. 2012. (Pet. On April 17. On cross-examination of the accountant. a couple days later.00 and $9. (Pet.A hearing was held on June 29. the State inquired whether the accountant would ever refer to $9. Pages 141. Page 145). There were seven or eight transfers of money from the PayPal account into Petitioner’s account in increments less than $10.00. for example. Petitioner presented the testimony of an accountant regarding the monies owed by Petitioner and his wife as well as the incoming funds from the website account which had a net total worth of $197. Pages 135-144). (Pet. Further transfers were made on April 18th so that Petitioner’s account showed a balance of about $10.00 was left in Petitioner’s account and his wife’s account reflected $110. Appx. transferred back into Petitioner’s account which then found their way into counsel’s trust account.00.00.000. and the wife’s account reflected a balance around 9 .000. Page 153). Appx. (Pet. The accountant indicated he would not and agreed with the State that in doing so.567. for a total of $132. Those same funds were then transferred into Shellie Zimmerman’s accounts and then. Appx. (Pet.91. inter alia.142-143). Appx. Appx. while his wife had $50.000.00 as nine dollars.00.00 in his account. Id.00.999. Appx. upon. 2012. (Pet.000.000. Petitioner’s motion to reset bond.132). money was transferred from Petitioner’s account to his wife’s account so that less than $20. Appx. Pages 118. Pages 139.151). the only conclusion would be that the persons were speaking in code.000.149. in amounts of $9.
Appx. (Pet. More money was transferred out of Petitioner’s account before the bond hearing and the money was returned to Petitioner’s account after the bond hearing. Page 231).232). Pages 155-156). Id.$120. The State made it clear it wanted the opportunity to cross-examine Petitioner. (Pet. Appx. (Pet. so whoever had access to Petitioner’s e-mail and password was the person transferring the funds. The judge suggested this was a back-door attempt to avoid some harsher penalties pursuant to section 903.230). (Pet. but the judge stated that the State should have the opportunity to question Petitioner since this issue is not personal to the judge. Pages 230.00. Appx. but counsel denied trying to back-door it. the judge concluded. (Pet. Petitioner was also free to invoke his Fifth Amendment right. Page 232). The money in the PayPal account was transferred through Petitioner’s e-mail account with a password. but has to do with what he did to the system and the process. Page 157). (Pet.000. Appx. Appx. However. Appx. (Pet. After consultation. Counsel suggested the trial court could inquire after Petitioner made his statement.” (Pet.035. the defense 10 did not call any more . The State objected to being foreclosed from cross-examination. Petitioner could testify but he would be subject to cross-examination. Appx. The accountant agreed this was done to “make it appear that he didn’t have the money. Pages 229. Page 161). (Pet. Appx. Thus. Id. The defense presented other evidence and then indicated it was counsel’s intent to allow Petitioner to speak to the court without being subject to cross-examination. Appx. Pages 154-155). Pages 230-231).
The Defendant has tried to manipulate the system when he has been presented the opportunity to do so. the Defendant has flouted the system. He has been arrested before. Counsel has attempted to portray the Defendant as being a confused young man who was fearful and experienced a moment of weakness and who may also have acted out of a sense of “betrayal” by the system. before this tragic 11 . Upon argument of counsel. He also had the wherewithal to set up a website to collect donations to help defray the costs of his defense. He is an adult by every definition. The questions before the court were whether a defendant is entitled to bail when he presents false testimony at a prior bond hearing and what recourse there is when a defendant has shown a blatant disregard for the judicial system. Pages 232-252). Thus. echoing statements which had been made to various media outlets by Petitioner’s counsel regarding Petitioner having been less than fully candid with the court. (Appendix E. the trial court entered a lengthy order setting bail. Based upon all of the evidence presented. (Pet. He has also obtained an injunction and had an injunction entered against him. held: Under any definition. having entered and successfully completed a pre-trial intervention program. Appx. Appx. an attorney. (Pet. Page 8). Id. (Pet. The Defendant has taken courses in criminal justice with the intention of becoming a police officer. the judge indicated it would await the additional evidence and make a ruling. 2012.witnesses. Appx. The trial court. The injunction against him has obviously been dissolved at some point for him to have validly obtained a permit to carry the firearm used to shoot Trayvon Martin. this Court finds the opposite. or a magistrate like his father. Page 255). on July 5. Pages 254-261). a judge. Trayvon Martin is the only male whose youth is relevant to this case. Less than a week later.
any sense of “betrayal” would be unreasonable. to conceal their cash holdings. Notably. The State notes that his stories changed each retelling. but for the requirement that he be placed on electronic monitoring. he clearly understood that he was being investigated for committing a homicide and.incident. but primarily at the Defendant’s direction. the money only had to be hidden for a short time for him to leave the country if the Defendant made a quick decision to flee. Moreover. reasonable treatment and was granted reasonable bail. there has been nothing presented which indicates that he was misled into believing that he would not be charged with a crime. The evidence is clear that the Defendant and his wife acted in concert. but on the surface he should be deemed to have been cooperative. the Defendant had a very sophisticated knowledge of the criminal justice system over and above that of the average. the Defendant and his wife would have fled the United States with at least $130.000 of other people’s money. Contrary to being betrayed. but also stated that it was not a very effective way to do so because all of the bank transactions were traceable. He admitted that one interpretation of the Defendant’s actions was to hide money. the Defendant’s forensic accounting expert. while he believes that he was justified in his actions. However. did not dispel this Court’s concern that the Defendant was seeking to hide assets. it appears to this Court that the Defendant is manipulating the system to his own benefit. Adam Magill. He was cooperative with the Sanford Police Department in that he did give numerous statements upon request. the Defendant received normal. law-abiding citizen. They spoke in rudimentary code to conceal the true amount of money they were dealing with. The 12 . It is entirely reasonable for this Court to find that. together with the passport. The Defendant also neglected to disclose that he had a valid second passport in his safe deposit box. Contrary to the image presented by the Defendant not by the evidence but only by argument of counsel.
Page 266-274). The court addressed each of the factors set forth in section 903. Appx. The trial court. and concluded that a bond of $1.00 was fair based upon the changed circumstances. Pages 256-258). denying the 13 .. 2012. (Pet. The Defendant didn’t present any witness to affirmatively state that the Defendant has not received funds from any other source. (Pet. The trial court issued an order on August 1. 2001).fact that they have spent the money “responsibly” (i. (Appendix E). disparaging remarks about Mr. Pages 258-261).” (Pet. compared Petitioner’s deception at the bond hearing to violating a bond condition. Zimmerman to be prosecuted for additional crimes. Zimmerman’s head the threat of future contempt proceedings. Appx. Pages 257-258). The court found its discretion limited by State v.e. Appx. Paul.046(2). Appx. 783 So. 2012. In his Motion to Disqualify Trial Judge dated July 13. 2d 1042 (Fla.000. while admitting the analogy was not exact. (Pet. misleading or incomplete.000. Pages 255-256). Petitioner alleges he has a reasonable fear he cannot get a fair trial or stand your ground hearing in that the trial court’s order setting bail included “gratuitous. The State filed a response to the motion arguing that the allegations were legally insufficient and that some of the facts asserted in the motion were inaccurate. Zimmerman’s character. advocates for Mr. offers a personal opinion about the evidence for said prosecution and continues to hold over Mr. Appx. (Pet. Florida Statutes. without going out to expensive dinners or splurging on nonessentials) is of no consequence in this analysis.
Page 280). Id. the trial court noted that this was not the first motion to disqualify a judge filed by Petitioner. Id. 2012. Prohibition is the appropriate avenue for relief after the denial of a motion to disqualify a trial judge because of bias or other reasons. Petitioner filed a petition for writ of prohibition seeking review of the order denying the motion to disqualify. nor was there any allegation that she would be exposed to extra-judicial information because of her husband’s employment. Appx. (Pet. 2d 1067 (Fla. Castro v. Mandico v. this Court issued its order to respond to the Petition for Writ of Prohibition. rather than (d)(2)..330(d)(1). 650 So. 605 So. Id. On August 13. Taos Construction. However. (Pet. in an abundance of caution. On August 14. Pages 280-281). 2012.motion as legally insufficient. the first judge found the grounds legally insufficient in that she did not have an interest that could be substantially affected. 2d 850. rather than a successive motion. 1992). the successor trial judge applied the standard for an initial motion to disqualify. Luce. Petitioner had filed a motion to disqualify the first judge assigned to the case on the basis that the judge was related to an interested party. arguably. 2d DCA 14 . Inc. 853 (Fla. In a footnote. Yet. MERITS The writ of prohibition is an extraordinary remedy by which a court may prevent a lower court from acting outside of its jurisdiction. the first judge disqualified herself pursuant to subsection Florida Rule of Judicial Administration 2. As such. Id. Appx.
1995). Admin. “A motion to disqualify will be dismissed as legally insufficient if it fails to establish a well-grounded fear on the part of the movant that he will not receive a fair hearing. 1274 (Fla. 15 . 881 So. The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged. 2d 240. that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge . 834 So.10.” Rodriguez v. Knuck. cert.” Griffin v. Fla. 2d 836. 41 (Fla." A judge considering a motion to disqualify is limited to “determining the legal sufficiency of the motion itself and may not pass on the truth of the facts alleged. State. Jud. State.330(d)(1) provides "[a] motion to disqualify shall show . denied. Chamberlain v. 2007). the fear must be objectively reasonable. 544 U. State. The standard of review of a trial judge's determination on a motion to disqualify is de novo. 2003). 2005).S. see also § 38. 1097 (Fla. 930 (2005). . 242 (Fla. which must be assumed to be true. 2d 1252." Arbelaez v. Jud. State. R. Barnhill v. State. Rule 2. 2. 2005) (quoting Fischer v. rather. R. 497 So. "mere ‘subjective fear’ of bias will not be legally sufficient. State. Admin. . 2004). 2d 25. would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge. 2d 1257 (Fla. 1986)).330(f). Florida Statutes (2011). See Gore v. 843 (Fla. 2d 1087. 11 (Fla. 919 So. . Whether the motion is legally sufficient is a question of law. 866 So. 898 So. .330(d)(1). Fla. 2002). . 2d 1. 964 So. 2. Moreover.
See Fla. which must be assumed to be true. Trask. 599 So. King v. An order denying a motion to disqualify a successor judge is reviewed under an abuse of discretion standard.330(g). Jackson v. State. 390 (Fla.However. 2d 1163. Admin. 643 So. 4th DCA 1994). 980 (Fla.330(d)(1). 1992). 2000). 2d 389. reasonable fear on the part of the defendant that he or she will not receive a fair trial before a particular judge. Jud. 2. 2003). where a previous motion to disqualify has been granted pursuant to subdivision (d)(1). R. See Asay v. 2d 103. The term “legal sufficiency” encompasses more than mere technical compliance with the rule and the statute. would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge. 717 So. assuming the allegations are true as required by the rule. Further. The subjective fear of a party seeking the 16 . See State v. Shaw. State. 107 (Fla. Here. 2. Rivera v. R. 1164 (Fla. 1998). 2d 1047 (Fla. Admin. The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged. the complaints raised by Petitioner are legally insufficient.” Mobil v. 769 So. State. 2d 477. Jud. Legal sufficiency: To warrant recusal. this fear of judicial bias must be objectively reasonable. 480-81 (Fla. a successor judge shall not be disqualified unless the successor judge rules that he or she is not fair or impartial and may rule on the truth of the allegations in the motion. a motion for disqualification must concretely allege a well-founded. State. “A judge is not required to abstain from forming mental impressions and opinions during the course of the presentation of evidence. 840 So. 1st DCA 1985). 463 So. 2d 974. See Fla.
See Kowalski v. State. 2d 103. 2d 885 (Fla. Weekly S270 (Fla.” We rejected the claim that such a statement by a trial court judge provided a basis for the recusal of the trial judge in subsequent proceedings: [T]he comment to the Commission did not constitute a prejudgment of any pending or future motions that the defendant might file. 1192 (Fla.” Jackson v. the facts and reasons given for the disqualification of a judge must tend to show “the judge's undue bias.” Id. In Waterhouse v. 12. and was not made outside the official postsentence investigative process in a manner indicating a predisposed bias against the defendant. 2d 477. 37 Fla. 717 So. 557 So. Apr. or sympathy. 792 So. 480-81 (Fla. State. 107 (Fla. L. see also Rivera v. State. State. 2012). 480–81 (Fla. State. Boyles. see also Rivera v. 2d 874. 599 So.” would lead any reasonable person to conclude that Waterhouse is a “dangerous and sick man. coupled with Waterhouse's own admission that he had a “problem with sex and violence. 2001). 1987). 717 So. 2d 1176. no relief is warranted. McCrae v.disqualification of a judge is not sufficient. 1998). 510 So. Rather. 5th DCA 1990). prejudice.3d at 982. 2d 477. Parker. Krawczuk v. 1992). Where the claim of judicial bias is based on very general and speculative assertions about the trial judge's attitudes. the trial judge issued a much more egregious statement to the Florida Parole and Probation Commission to the effect that “the subject is a dangerous and sick man and that many other women have probably suffered because of him. 3 So. The circumstances of these murders. 17 . State. Given the facts in this case. at 1195. 880 (Fla. the statement to the Commission indicates nothing more than the judge's opinion after having heard evidence relating to two exceedingly cruel and brutal murders of women who were sexually assaulted.
Spicer. but it is well established that “[t]he fact that the judge has made adverse rulings in the past against the defendant. are legally Pursuant to Rule of Judicial Administration 2. are untimely. Doorbal v. 2d 464. 599 So. 2d DCA 2003)(It is well established that a trial court’s prior adverse rulings are not legally sufficient grounds upon which to base a motion to disqualify). 2008). the background complaints regarding past rulings by the trial court. State.160(e). 496 (Fla. any objection to some of these rulings is untimely2. especially those that were also contrary to the State’s position. 476-77 (Fla. or that the judge has previously heard the evidence. or ‘allegations that the trial judge had formed a fixed opinion of the defendant's discussed legally guilt. 717 So. 983 So. filed more than ten days after the complained-of rulings. 2d at 107. a motion for recusal must be filed “within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion. As such.’ to generally the considered judge's insufficient reasons warrant disqualification.” Clearly some of these claims. State. Moreover.” Rivera. see also Areizaga v. 18 2 . even where it is alleged are that the judge his opinion with others. 2d 494. Petitioner complains about rulings in the past in his background section. 841 So. 2d at 481 (quoting Jackson v.1998) (finding that the written response by the trial judge to a parole commission inquiry that “I am inalterably opposed to any consideration for Executive Clemency and I believe the sentence of the court should be carried out as soon as possible” was insufficient to disqualify the judge from further presiding over the case).
” (Pet.000. Pages 370-371). Appx. Petitioner’s primary complaints are with the trial court’s findings in the order granting bond that he manipulated the system and demonstrated a disregard for the system.000. (Pet. Appx. Appx. Defense counsel conceded during his argument in the second bond hearing that “they didn’t tell you the truth about the money.insufficient and untimely. this finding was made after it was established that Petitioner and his wife knew they had received donations of more than $200. Of course.00. (Pet. it was unrefuted that Shellie Zimmerman knew to the contrary when she testified under oath at the first bond hearing that neither she nor her husband had any income and no major assets that could be liquidated to assist in raising money for a bond. Furthermore. Zimmerman also indicated she was aware the defense was seeking to have her husband declared indigent because they had no financial means to assist in paying for costs. at best. if possible. Page 251). as nine dollars rather than $9.00 from a website prior to the first bond hearing. Petitioner has shown himself willing to play the system. In its order 19 . Page 371). prior to the first bond hearing. and that they had moved the money from Petitioner’s account to his wife’s account before the hearing and then back to Petitioner’s account after the bond hearing. It is unrefuted that this testimony was. Mrs. However. the website money at the jail in code by referring to the amounts. less than honest if not intentionally misleading especially in light of the audiotapes which reveal Shellie Zimmerman and Petitioner discussing. Thus. for example.
Appex. the court found he had manipulated the system. Id. facts which 20 . the trial court discussed each alternative including. . . . L. . Petitioner also asserts that the court continues to “hold over” Petitioner the possibility of contempt proceedings. 3d DCA June 27. Appendix Page 350). (Pet. 2012). which include “the arrest and commitment of a defendant. Notably. . the trial court simply chastised Petitioner in an attempt to get his attention so that it would not happen in the future. . Weekly D1535 (Fla. increase the amount of bond. pretrial detention. the possibility of contempt proceedings. harsher conditions of pretrial release. the court’s reference to its declination to exercise contempt powers comes directly after a discussion of the Third District Court of Appeal’s opinion in State v. However.setting bond. examination of the court’s order indicates that Petitioner has taken this reference out of context. the judge also chastised Petitioner for having allowed misrepresentations about his passport and financial situation to be presented to the court. 37 Fla. Washington. While granting the motion to set a bond. Immediately after quoting this language from Washington. (Pet. [or] direct or indirect criminal contempt. instead. was contained in the language taken verbatim from Washington.” if there was one. . just like a judge chastising a defendant who has violated a bond condition or violated his probation. .” Id. but not limited to. The socalled “threat. Pages 12-13). the trial court did not label Petitioner a liar. wherein the list of potential remedies of bond conditions.
are not grounds for recusal unless there is an objectively reasonable basis for concluding that the judge is personally biased or will in the future fail to be impartial. or said anything to support finding that the petitioner’s fear is reasonable). Kaplan." Brown v.” Even assuming this to be the case. 4th DCA 1996). 1993). the comments of which he complains were “gratuitous. even if gratuitous. mere characterizations and gratuitous comments. Remarks regarding a court's feelings after having heard evidence. 37 Fla. 577 So. The facts and reasons given for disqualification of a trial court judge must be such that the actions of the trial court judge show personal bias or prejudice. 4th DCA). do not in themselves satisfy the threshold requirement of a well-founded fear of bias or prejudice.2d 919. 619 So." Wargo v. 4th DCA 1990). 669 So. harbored any bias. while offensive to the litigants. Nassetta v. 2d 645. 2012)(trial judge’s admonitions of counsel and threat to hold counsel in contempt did not require disqualification as judge expressed no views as to credibility. 2d 23. Bermudez. See Levine v. made no comment suggesting he had pre-judged any issue. 1st DCA 1991). 26 (Fla. See Oates v. 1124-1125 (Fla. This does not require disqualification of the trial judge. 629 So. 650 So. State. as long as she does not prejudge the case.. 3d DCA June 29. review denied. Wargo. [g]enerally. 2d 1123.are unrefuted and which clearly affected the trial court’s ruling on bond. "A judge may form mental impressions and opinions during the course of presentation of evidence. See. According to Petitioner. 921 (Fla. 647 (Fla. Bert v. 557 So. Weekly D1465 (Fla. 4th DCA 21 . 2d 134 (Fla. Pate.g. L. State. 2d 666 (Fla. e.
Dabrio v. 2d 974 (Fla. The facts here are more analogous to the case of Nassetta v. 984 So. 536 (Fla. 2d DCA 1996) (holding that judge's comment that his "hands were tied" did not establish that he was predisposed to impose adult sanctions for juveniles. 2d 534. 2d 25. 242 (Fla." Arbelaez v. The first is a gratuitous comment showing the judge's attempt to remain neutral." Rolle ex rel." do not require disqualification. in response to a motion to reduce bail. In ruling on a motion for disqualification. 557 So. did not require recusal. 2005) (quoting Fischer v. 2d at 920. 685 So.1995). Birken. where. 2d 1363. 497 So. 1364 (Fla. the Fourth District held that the trial judge's "gratuitous remarks" did not require recusal. 769 So. The remarks of the trial court judge in the present case fail to demonstrate personal bias or prejudice and cannot be interpreted as creating in the petitioners an objectively reasonable well-grounded fear that the petitioners will not receive a fair and impartial trial. rather. 41 (Fla. 2000). We do not find Mansfield's allegations of fear to be objectively reasonable. the remarks of the trial judge here. 898 So. we recently pointed out that a "mere 'subjective fear' of bias will not be legally sufficient. 3d DCA 2008)(footnote omitted). Likewise. 2d 919 (Fla. Knuck. but meant that his rulings were contingent upon a decision by the appellate court). 2d 240. see also Benson v. charged with fraud and grand theft. the fear must be objectively reasonable. Likewise. got out of jail. State. the trial judge's comment. See also Asay v. 557 So. 4th DCA 1990). that he did not care whether the lawyer. Our cases support the trial court's denial of the motion 22 . Neither comment is grounds for the granting of a petition for writ of prohibition. Kaplan. State. Tharpe. 1986)). and the second indicates that he will abide by a decision from this Court directing him on whether to set the case for trial. See Nassetta. "I'm not going to be threatened" and "I don't care what the Third District does with this case.
2d 678 (Fla. and we affirm the trial judge's order. tossed the affidavit back and said.to disqualify. [the court] expressed doubt as to its reliability.’”). I don't know how much credence I would give it if it had the same things in it.’”). 1961)(judge stated posttrial that he would not believe an agent of one of the parties who the judge believed had lied on the stand). 2d 253. without having heard testimony from Stocks. 127 So. 257 (Fla. Moreover. Brown v. 1990)(“Judge Rudd. 1st DCA 1994)(trial judge made a comment about a party's believability with the court “is about as thin as a balloon”). 911 So. v. Campbell Soup Co. 2d 198. cert. Owens-Corning Fiberglas Corporation v. George Island. St. there has been no such statement by the trial judge and the unrefuted truth is that Petitioner did allow others to mislead the court into granting him a very beneficial bond which authorized him to leave the State despite being charged with second degree murder and facing a 23 . 561 So. 676 So. State. commenting that “‘[I]f the president of Campbell Soup were to file a similar affidavit. 2d DCA 1995)(“After examining the affidavit. “‘If [the party] were here I wouldn't believe him anyway. Mansfield v. 2d 1160. 2d 340. 341 (Fla. 2d 435 (Fla. distinguishable the in authority that the relied judges in upon those Petitioner cases is stated categorically that they did not find the party credible and would not believe the party either now or in the future. 3d DCA 1960).. 644 So. Roberts. denied. 120 So. 1171 (Fla. Parsons. 202 (Fla. Ltd. Here. Tobin. v. 2005). and Deauville Realty Co.
and indicate nothing more than the judge’s opinion after having heard evidence.. 2d at 257 n. the judge ruled in Petitioner’s favor and granted him a bond revealing that the court is fully capable of following the law even after finding Petitioner manipulated the system..simply because of making an earlier ruling in the course of a proceeding which had the effect of rejecting the testimony of the moving party.”). Similarly. the judge mentioned the court’s contempt power and section 903. the trial court did not rule against Petitioner. The comments now complained of certainly do not indicate any predisposition as to future motions. in an attempt to get Petitioner’s attention that his actions in allowing others to mislead the court about his passport and financial situation constituted a manipulation of the system and to ensure it would not happen again.. None of the comments by the trial court rise to the level of being legally sufficient to establish an objectively reasonable fear by Petitioner that he will not receive a fair trial by the judge.potential life sentence. Moreover. Florida Statutes. The judge again set a bond 24 . 7 (“We hasten to add that our holding should not be construed to mean that a judge is subject to disqualification.035(3). At the very least. Notably. Cf. the judge was simply giving Petitioner a well deserved tongue lashing for allowing others to mislead the court about his passport and his financial situation.there must be a clear implication that the judge will not believe the complaining party’s testimony in the future. Brown.. Instead. 561 So.
Florida 32804. this 23rd day of August. upon motion of Petitioner. and filed a motion to disqualify the judge who set the higher bond. Esquire. the judge learned that circumstances were not as previously represented. P. de 101 la Bush Boulevard. Florida Bernie Rionda. In a nutshell. and.. Florida 32203. set a new higher bond. Mail to counsel for Petitioner. at O’Mara Law Group. Orlando. the grounds listed by Petitioner in his motion are facially insufficient. the defense is unhappy with that ruling. based upon the above. the Honorable Kenneth R. Reducing the claim to its true essence. 25 . Jacksonville. Justice and Center. 1416 East Concord Street. thus. the trial court properly denied the motion. Orlando. 220 East Bay Street.S. Office of the State Attorney. the trial judge set a bond on a defendant charged with murder. West. when new facts were revealed. at Donald West Law Group. and Donald R. the trial judge increased the bond. Assistant State Attorney.A. Circuit Judge. Florida 32803. Mark O’Mara. the judge revoked bond. Sanford. and Petitioner is currently out on bond. Respondent submits that the motion to disqualify in this case is legally insufficient and. Seminole Criminal 32773. Thus. WHEREFORE. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Response to Petition for Writ of Prohibition and Index to Appendix has been furnished via delivery by U. Lester. Jr. Esquire.for Petitioner.. The petition for writ of prohibition should be denied. 636 West Yale Street.
KOLLER ASSISTANT ATTORNEY GENERAL Fla. App. 0775990 444 Seabreeze Blvd. Respectfully submitted. 9. PAMELA JO BONDI ATTORNEY GENERAL _________________________ PAMELA J.100(l). CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this response is 12-point Courier New. P. in compliance with Fla. R. FL 32118 (386) 238-4990 Fax (386) 238-4997 Pamela.2012.Koller@myfloridalegal. No.com COUNSEL FOR RESPONDENT 26 . Bar. 5th Floor Daytona Beach.