Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3398 _____________________________ EDDIE ROGER BLALOCK, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. Michael A. Flowers, Judge. June 10, 2020 PER CURIAM. Appellant, Eddie Roger Blalock, appeals the trial court’s judgment and sentence entered in his violation of probation case and in his new law offense case where he was charged with possession of a controlled substance. He argues that the trial court erred in denying his motion to recuse filed in both cases and that it subsequently conducted a plea colloquy that was legally insufficient. For the reasons that follow, we affirm the judgment and sentence as to the violation of probation case, but we are constrained to reverse and remand as to the new law offense case. We affirm the judgment and sentence as to Appellant’s violation of probation case, entered following his plea, because a ruling on a motion to disqualify is not dispositive and he failed to preserve the argument that the plea colloquy was legally insufficient. See Fla. R. App. P. 9.140(b)(2)(A) (providing that a defendant may not appeal from a guilty or nolo contendere plea except under the enumerated circumstances, which include the reservation of the right to appeal a prior dispositive order, an involuntary plea if preserved by a motion to withdraw plea, and as otherwise provided by law); see also Zambuto v. State, 731 So. 2d 46, 46 (Fla. 4th DCA 1999) (finding that a ruling on a motion to recuse is not dispositive and citing Duckworth v. State, 469 So. 2d 913 (Fla. 1st DCA 1985), as holding the same); Vito v. State, 270 So. 3d 1287, 1288–89 (Fla. 1st DCA 2019) (acknowledging that the trial court did not review each of the Florida Rule of Criminal Procedure 3.172(c) factors during the plea colloquy, but affirming because the appellant did not preserve through his motion to withdraw plea the argument on appeal that the court failed to determine that he understood the rights waived by, and the potential consequences of, entering a guilty plea as required by the rule). On the other hand, as the State concedes, the record reflects that Appellant was not sworn in, he did not enter a plea in the new law offense case, and he was not informed of the consequences of entering a plea. Yet, the parties and the trial court proceeded at the sentencing hearing under the assumption that Appellant had also entered a plea in the new law offense case. See Haug v. State, 151 So. 3d 560, 561 (Fla. 1st DCA 2014) (quoting Koenig v. State, 597 So. 2d 256, 258 (Fla. 1992), that “[d]ue process requires a court accepting a guilty plea to carefully inquire into the defendant’s understanding of the plea, so that the record contains an affirmative showing that the plea was intelligent and voluntary,” and reversing “[b]ecause the legal requirements of Florida Rules of Criminal Procedure 3.170(k) and 3.172(c) were not fulfilled” where the trial court adjudicated the appellant guilty and sentenced him for violating his probation, but “the record reflects that [he] was never sworn in, he never admitted to any of the alleged violations of probation, and he was never informed of the consequences of his admission”); see also Davis v. State, 187 So. 3d 1284, 1284 (Fla. 1st DCA 2016) (reversing and remanding with instructions to conduct a plea colloquy before entering a judgment and sentence because the trial court violated rule 3.172(c) where the parties believed that the appellant had admitted to violating 2 his probation and the trial court skipped the plea colloquy before sentencing him, but the record showed that he made no admission and was not informed of the consequences). As the State further concedes, the trial judge erred in denying Appellant’s motion to recuse because the judge’s statements that the allegations in the motion were “patently false” exceeded the proper scope of inquiry of whether the motion was legally sufficient and established an independent ground for disqualification. See Fla. R. Jud. Admin. 2.330(f) (stating that in ruling on a motion for disqualification, the judge “shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged”; “[n]o other reason for denial shall be stated”); see also Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) (explaining that when a trial court looks beyond the legal sufficiency of a motion for disqualification and attempts to refute the allegations, it exceeds the proper scope of inquiry and disqualification is required on that basis alone, regardless of the correctness of the denial of the motion as legally insufficient); State v. Scharlepp, 255 So. 3d 995 (Fla. 1st DCA 2018) (granting relief because the trial court’s attempt to refute the allegations in the motion to disqualify created an independent basis for disqualification); D.H. ex rel. J.R. v. Dep’t of Children & Families, 12 So. 3d 266, 271 (Fla. 1st DCA 2009) (reversing because the trial court erred in denying the motion for disqualification where it tried to refute the factual allegations); Turner v. State, 598 So. 2d 186, 187 (Fla. 1st DCA 1992) (reversing because the trial court improperly decided the legally insufficient motion for disqualification on the merits by denying the truthfulness of the allegations). Therefore, we reverse the judgment and sentence as to Appellant’s new law offense case and remand for further proceedings before a different judge. AFFIRMED in part; REVERSED in part; and REMANDED with instructions. LEWIS, ROWE, and JAY, JJ., concur. 3 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and John Villafrate, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee. 4