Petition for Writ of Prohibition, County Court: DISQUALIFICATION– judge –Given the fact that the no contact order was reinstated at the same time as the defendant refused to waive speedy trial, a reasonable defendant could infer that he was not going to receive a fair trial. Petition granted.   Clair v. State, ,No. 512007CA2195  (Fla. 6th Cir. App. Ct. July 11, 2007).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

TYLER R. CLAIR,   

            Petitioner,  

                                                                        CASE NO: 51-2007-CA2195

                                                                        Lower No: CTC0607178MMAWS    

v.

 

STATE OF FLORIDA,                                  

            Respondent.                                                    

___________________________/

 

County Judge Marc H. Salton

 

Shahtia Gay- Hairston, Esq. A.P.D.   

Attorney for Petitioner

 

Robert Ehrhardt, Esq. A.S.A.

Attorney for Respondent.

 

 

ORDER GRANTING PETITON FOR WRIT OF PROHIBITION:

 

THIS CAUSE came before the Court on the Petition for Writ of Prohibition filed by petitioner, in which petitioner seeks to disqualify the county judge from further proceedings in his criminal case. A motion to disqualify shall show “. . . 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…”  Fla. R. Jud. Admin. 2.160(d)(1).  A motion is legally sufficient when the facts alleged, taken as true, would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.  Livingston v. State, 441 So. 2d  1083 (Fla. 1983). 

            In this case, the petitioner was arrested on September 25, 2006, for a misdemeanor battery.  At the advisory hearing on September 26, 2006, the petitioner was released on unsupervised recognizance and ordered to have no contact with the victim, Cassandra Keyes.

On September 27, 2006, the victim, Cassandra Keyes, filed a Motion to Lift No Contact.  Judge Salton granted this Motion to Lift No Contact on October 9, 2006. 

            On November 17, 2006, Petitioner appeared before the Court for arraignment.  During that proceeding, the public defender was appointed to represent the petitioner and a plea of not guilty was entered. The public defender announced that petitioner was not waiving speedy trial and was asking for a trial date. The court then stated “I’m going to reinstate the no contact.  Mr. Clair, no contact.” The defendant then advised the court that it had already been lifted once and that he had kids. The judge said ‘I’m reinstating it, sir. . . . I’m reinstating the no contact provision.  It’s getting set for trial.  We’ll set this for trial December 18th.” The following then took place:

 

            COUNSEL: Your Honor, I’m going to do an oral motion –

COURT: You file any written motions you wish to file.  Give that to Sherry to reinstate the no contact.  Is Cassandra Keys here? Is she here?

PETITIONER: She’s home with my kids.  She couldn’t come because we didn’t have a baby-sitter.

            COUNSEL: They have a letter saying she wants contact with him.

COURT: I just said there will be no contact.

DEFENDANT: If she comes here—

COURT: No, sir.  Trial December 18th. 

 

Petitioner alleges that based upon the facts of this case, he has a well grounded reasonable fear that he will not receive a fair trial. This Court agrees.  Unlike Scott,[1] in which the court described the judge’s decision of not accepting a negotiated plea as an “exercise of legitimate judicial function”; the court in this case clearly changed a condition of release without a motion, without a hearing, and without even a request from the victim or the state. Given the fact that the no contact order was reinstated at the same time as the defendant refused to waive speedy trial, this Court finds that a reasonable defendant could infer that he was not going to receive a fair trial.

Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Prohibition is GRANTED.

            DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of June,  2007.  

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Administrative Judge

                                                           

                                                                                    _____________________     

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to:

County Judge Marc H. Salton

Shahtia Gay- Hairston, Esq. A.P.D.  

Robert Ehrhardt, Esq. A.S.A.

County Court Judges

 

 



[1] Scott v. State, 909 So. 2d 364 (Fla. 5th DCA 2005).