Petition for Writ of Prohibition, County Court: DISQUALIFICATION– judge – Petitioner’s motion to disqualify presiding judge is unsworn and not timely filed as required by the Florida Judicial Administrative Rules, Rule 2.160(c),(e) – the appellate court cannot issue a writ under facts of this case – Petition denied.  Smith v. Florida Infusion Services, No. 04-0036AP-88B (Fla. 6th Cir. App. Ct. July 9, 2004).

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DESMOND E. SMITH, M.D.,

                                    Petitioner,

vs.                                                                                                 Appeal No. 04-0036AP-88B

                                                                                                     UCN522004AP000036XXXXCV

FLORIDA INFUSION SERVICES, INC.,

                                    Respondent.

____________________________________________/

 

ORDER DENYING REQUEST FOR WRIT OF PROHIBITION

            THIS CAUSE came before the Court on the Request for Writ of Prohibition, filed by the Petitioner, Desmond E. Smith, M.D., on April 28, 2004, and the Affirmation in Opposition to Defendant’s Writ of Prohibition, filed by counsel for the Respondent.  Upon consideration of the same, the Court finds that the Request for Writ of Prohibition must be denied.

            Initially, the Court finds that it cannot consider the “transcripts” of hearings held on August 26, 2003, and December 30, 2003, as the hearings were not recorded or transcribed by a court contract court reporter.  On remand, if Dr. Smith wishes to have the trial court proceedings transcribed, he must use a certified court reporter as required by Administrative Order No. 2004-018 PA/PI CIR, A.5. [1]

            However, for the sake of clarity, these “transcripts” have no bearing on the outcome of this appeal.  A review of Dr. Smith’s Motion to Change the Presiding Judge, as the trial court correctly found, is legally insufficient.  The Motion is unsworn and was not timely filed as required by the Florida Judicial Administrative Rules, Rule 2.160(c),(e).  Accordingly, the Court cannot issue a writ under the facts of this case.  See Carrow v. The Florida Bar, 848 So.2d 1283, 1285 (Fla. 2d DCA 2003)(stating that if a motion to disqualify does not comply with the requirements of Rule 2.160, the writ will not issue); see also Thomas v. The Chase Manhattan Bank, 857 So.2d 989, 990 (Fla. 4th DCA 2003)(finding that the failure to file a motion for disqualification within the ten-day period requires that a subsequent petition for writ of prohibition be denied).

            Therefore, it is,

            ORDERED AND ADJUDGED that the Request for Writ of Prohibition is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of July 2004.            

           

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

 

Judge William Blackwood

 

Desmond E. Smith, M.D.

45 Creekview Court

Greenville, S.C.  29615

 

Edward J. Aiosa, Esquire

10225 Ulmerton Road, Suite 5-B

Largo, FL  33771

[1] As of July 1, 2004, use of a “court contract court reporter” is no longer required; rather, a “certified court reporter” must be used if a transcript is desired in civil proceedings.  Review of this administrative order is available on the Sixth Judicial Circuit’s website at www.jud6.org.