Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 1, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D20-356 Lower Tribunal No. 98-2097B ________________ Jonathan Sawyer, Petitioner, vs. The State of Florida, Respondent. A Case of Original Jurisdiction – Prohibition. Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for petitioner. Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney General, for respondent. Before EMAS, C.J., and SCALES and GORDO, JJ. GORDO, J. Jonathan Sawyer petitions this Court to prohibit the trial judge from further presiding over his criminal case. We grant the petition. FACTUAL AND PROCEDURAL BACKGROUND 1 At the time of the events that led to the underlying motion for disqualification and the instant petition, Sawyer was set for resentencing based on Miller. 2 On the morning of the resentencing hearing, defense counsel went to the judge’s chambers to deliver case law and heard the defense expert, Mr. Ron McAndrew’s voice coming from the judge’s computer. The bailiff instructed defense counsel to consult the prosecution before delivering anything to the judge. The prosecution had no objection, so defense counsel returned to the judge’s chambers to deliver the relevant cases. Upon defense counsel’s entry to the judge’s office, the judge closed the browser window he had open and did not tell counsel that he was watching videos of the defense expert. Defense counsel returned to the courtroom and advised the prosecutor of the events that had transpired. When the judge entered the courtroom, both parties approached the bench and addressed the court sidebar. Defense counsel told the 1 The facts are taken from Sawyer’s motion for disqualification, as the facts in the motion “must be evaluated as true” and reviewed from the movant’s perspective. Messianu v. Pigna, 180 So. 3d 229, 230 (Fla. 3d DCA 2015) (citing City of Hollywood v. Witt, 868 So. 2d 1214, 1217 (Fla. 4th DCA 2004); Jimenez v. Ratine, 954 So. 2d 706, 708 (Fla. 2d DCA 2007)). 2 Miller v. Alabama, 567 U.S. 460 (2012). 2 judge that he heard Mr. McAndrew’s voice on the judge’s computer. The judge acknowledged that it was Mr. McAndrew’s voice and that he had been watching videos posted on the expert’s website. Defense counsel advised that she would be filing a motion to disqualify the court and that her client was in agreement. The court then explained: So, the -- just so we’re all clear of what happened, I was looking through his bio that was provided to me by the defense. In there, was a reference to a book. I looked at the reference to the book; it led to his website. On his website, he posts a number of videos, and the video that you heard me listening to was the one about death penalty, I think, is what he was speaking about. After a brief recess, the defense confirmed it would be filing a written motion and the trial court tabled the resentencing until the filing of that motion. The parties and the court then discussed the filing deadline for the disqualification motion and the court acknowledged that the rules permit a certain amount of time for the filing of a motion for disqualification. Defense counsel advised that she would likely need a transcript before filing and that she believed the rules prescribed ten days for the motion. The court said “You do what you need to. It’s not a problem.” The following day, at 12:15 p.m., defense counsel received an email from the judge’s judicial assistant stating that the judge wanted her to report to the courtroom at 1:00 p.m. for a status report. Defense counsel appeared and the court asked her whether she would be filing a motion. She responded that she was working on it 3 and would be filing it within the ten-day period required by Rule of Judicial Administration 2.330. The following exchange transpired between defense counsel and the court: THE COURT: So, the Judicial Rules of Administration require an immediate filing. You indicated yesterday you wanted to get a transcript. Did you order the transcript? MS. LEWIS: Yes, a transcript was ordered. THE COURT: Expedited? MS. LEWIS: Expedited. It was actually received -- just received. THE COURT: Today? MS. LEWIS: So, I have sent it up to my legal department. They’re taking a look at it and -- what we need to do, but we all have other responsibilities within the office that was taking some -- THE COURT: All that is -- MS. LEWIS: -- time away from this, but this is definitely on -- THE COURT: Okay. MS. LEWIS: on our radar. THE COURT: If you seek to disqualify the Court, you must file your motion today by midnight. MS. LEWIS: I will object to that order by the Court. The rules do give me ten days to file the motion -- THE COURT: Read the rules again. MS. LEWIS: -- and -- THE COURT: Which rule are you relying on? MS. LEWIS: I don’t have it on me. MR. BORST: I can give you my statute if you want. THE COURT: The Court’s relying on Florida Rule of Judicial Administration 2.330; “Time Period is within a reasonable time not to exceed ten days after discovery of the facts constituting the grounds.” You’ve laid out your grounds yesterday. You just need to memorialize that in writing, you have the transcript, by midnight tonight. MS. LEWIS: Judge, again, I’m objecting. THE COURT: Overruled. 4 MS. LEWIS: I don’t believe that I have the information fully needed to accomplish that, and I do have in -- THE COURT: What more -- MS. LEWIS: -- rule 2.330, the up to ten days to do this. I -- I’ve never seen THE COURT: What more do you need that you don’t have? MS. LEWIS: There is legal research that needs to be done. There is consultation in our -- department that needs to be done. There is -- going to see Mr. Sawyer and having him execute an affidavit that needs to be done, and that all has to be accomplished. THE COURT: You had all day yesterday to do that and you had -- MS. LEWIS: Not without -- THE COURT: -- all day today. MS. LEWIS: I worked on this yesterday. I was on other matters and also -- office attended. THE COURT: Ms. Lewis, that’s the Court’s ruling. Your objection’s overruled. All right. That’ll take care of Mr. Sawyer’s matter. The motion to disqualify was filed that day. The next day, the trial court denied it as legally insufficient. LEGAL ANALYSIS This Court reviews “the postconviction court’s denial of [Sawyer’s] motion to disqualify de novo.” Reed v. State, 259 So. 3d 718, 721 (Fla. 2018) (citing Barnhill v. State, 834 So. 2d 836, 842–43 (Fla. 2002)). “The question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the judge's perception of his ability to act fairly and impartially.” Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983). “In 5 reviewing a motion to disqualify, ‘the judge shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.’” Reed, 259 So. 3d at 721 (quoting Cave v. State, 660 So. 2d 705, 707–08 (Fla. 1995)). “[C]ourts must review ‘whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.’” Id. (quoting Barnhill, 834 So. 2d at 843). The Florida Supreme Court has stated that a “judge, sitting as finder of fact in an evidentiary hearing, [should not] perform his own research into the credentials of an expert witness.” Krawczuk v. State, 92 So. 3d 195, 202 (Fla. 2012). “There is no reason apparent to this Court for the trial judge to perform his or her own research on the credibility of an expert witness outside of open court.” Id. 3 Here, in addition to the extra-record research conducted by the trial court, the unexplained and contradictory imposition of a same-day, less than twelve-hour deadline for filing a written motion to disqualify would cause any reasonably prudent person to fear that he would not receive a fair and impartial resentencing. The rules expressly permit “a reasonable time not to exceed 10 days.” Indeed, on the day of the resentencing hearing, when the issue first arose, the trial court acknowledged to defense counsel that the resentencing hearing would be postponed 3 We recognize that extra-record research standing alone is not necessarily sufficient to grant the extraordinary writ sought. 6 to await the filing of the disqualification motion, and gave defense counsel the assurance that she would be permitted to file the motion within the ten-day time period provided by Rule 2.330. Nevertheless, at 1 p.m. the following day, and without explanation or reason, the trial court retracted this assurance and instead required the motion be filed by midnight. 4 Defense counsel raised numerous issues with complying with a shortened deadline, but repeatedly assured the court that the motion would be filed within the ten-day time period. Still, the court overruled the objection and ordered that the motion be filed the same day. The court’s insistence on an immediate filing despite the time permitted by the governing rule and his prior statements allowing the defense the time it needed created an objectively reasonable fear in Sawyer that he would not receive a fair and impartial resentencing. We grant the petition, but, confident that the trial judge will disqualify himself from the proceedings, withhold issuance of the writ. Petition granted; writ withheld. 4 We do not suggest that the imposition of a same-day deadline for filing a motion for disqualification can never be objectively reasonable. Such a determination is necessarily fact-intensive and dependent upon the totality of the circumstances alleged. We merely hold that, under the totality of the circumstances alleged in the instant case and described in this opinion, Sawyer’s motion alleged a legally sufficient basis for an objectively reasonable fear that he would not receive a fair and impartial resentencing hearing. 7