County Criminal Court: CRIMINAL PROCEDURE – Mistrial – non-successor judge – due process.  A second judge who received a jury verdict for the first judge, who had left to fulfill a teaching commitment after sending the jury to deliberate, was not a successor judge.  It was improper for the second judge to rule on a motion for mistrial when there was no suggestion in the record that the first judge was unable to perform his responsibility to rule on the motion that he had taken under advisement, and the second judge did not certify that she had become familiar with the case.  Error that is not preserved by a contemporaneous objection may be raised on appeal only if the error is fundamental error, or plain error—that is, so obvious and substantial that failure to correct the error would infringe a party’s due process rights and damage the integrity of the judicial process.  It was a denial of due process and fundamental error for a non-successor judge to rule sua sponte on a pending motion for mistrial and not give the State Attorney a meaningful opportunity to be heard.  Order granting the motion for mistrial reversed, case remanded to the trial judge for further proceedings.  State v. Sean Michael McMullen, No. 09-00015APANO (Fla. 6th Cir.App.Ct. November 4, 2009).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 09-00015 APANO

UCN 522008CT129589XXXXXX

 

SEAN MICHAEL MCMULLEN

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Granting

a Motion for Mistrial entered by

the Pinellas County Court,

County Judge Susan P. Bedinghaus

 

Timothy F. Sullivan, Esquire

Attorney for Appellant

 

Kimberly Nolen Hopkins, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, State of Florida’s appeal from an Order Granting a Motion for Mistrial after the jury returned a verdict of guilty and Appellee, Sean Michael McMullen’s Cross-Appeal seeking a new trial on other grounds in the event the order of the trial court is reversed.  After review of the record and the briefs, this Court reverses the order of the trial court.

Factual Background and Trial Court Proceedings

Appellee, Sean Michael McMullen, was cited for Driving Under the Influence of Alcohol.  The case proceeded to jury trial on March 3, 2009 before the Honorable James V. Pierce.  During closing argument, the Appellee objected to certain arguments made by the State Attorney.  The court overruled the objection.  After the jury instructions were read and the jury retired, the Appellee renewed the objection to the closing argument made by the State Attorney and made a motion for mistrial.  Judge Pierce took the motion under advisement.  During the jury’s deliberations Judge Pierce left the courthouse to fulfill a previously scheduled teaching commitment. 

When the jury reached a verdict, the Honorable Susan P. Bedinghaus, County Court Judge, in the absence of Judge Pierce, presided over the taking of the jury’s verdict.  The jury found the Appellee, Sean Michael McMullen, guilty.  After the jury was excused, Judge Bedinghaus inquired, “I understand there was a motion for a mistrial made after the jury went out to deliberate?”  Appellee’s trial counsel responded there was.  The court then stated to Appellee’s trial counsel, “(w)ould you like to renew that motion?”  At that point, Appellee’s trial counsel, made a detailed argument in favor of the motion for mistrial.  At the conclusion of that argument and without affording the Assistant State Attorney an opportunity to respond, Judge Bedinghaus said, “(m)otion for mistrial granted.  Pick a new date.  I think I’ve reviewed the case.”  The Assistant State Attorney then said, “Judge, may I respond to that?”  The court responded, “No.  You need to?”  The Assistant State Attorney then said, “Judge, it’s not even in agreement that that was the language used.”  There followed a discussion of what arguments had been made by each counsel and whether one particular argument was appropriate.  The Assistant State Attorney said he had case authority in his office he wanted to present. No recess was taken and after a brief additional argument Judge Bedinghaus again stated the motion for mistrial was granted.

Successor Judge’s Authority

 to Address Trial Motions in a Presiding Judge's Absence

 

The present case does not involve a successor judge.  The judge presiding over the trial had not been removed or reassigned, was not ill, had not retired, died or been impeached.  There is no suggestion in the record that he was not ready and able to discharge his continuing responsibility for the case, and for the motion he had taken under advisement.  Judge Bedinghaus’ involvement in the case could properly be nothing more than simply taking the verdict in the temporary absence of the presiding judge. 

A successor judge's authority to rule in a presiding judge's absence is addressed in Florida Rule of Criminal Procedure 3.231.

If by reason of death or disability the judge before whom a trial has commenced is unable to proceed with the trial, or post-trial proceedings, another judge, certifying that he or she has become familiar with the case, may proceed with the disposition of the case.

 

Fla. R. Crim. P. Rule 3.231; See State v. May, 703 So.2d 1097, 1099 (Fla. 2nd DCA 1997).  In the present case the presiding judge remained responsible for trial or post-trial proceedings.  Judge Bedinghaus, prior to addressing the pending motion for mistrial, had not participated in the trial nor heard any of the involved evidence or arguments.  She did not certify that she had become familiar with the case.  At the time no transcript of the trial existed.  Judge Bedinghaus was not a successor judge and could not properly presume to decide a trial motion that the presiding judge had taken under advisement.

Preserving Issue for Appeal

Errors that have not been preserved by contemporaneous objection can be considered on direct appeal only if the error is fundamental.  Jackson v. State, 983 So.2d 562, 568 (Fla. 2008).  Fundamental error is error which goes to the foundation of the case or goes to the merits of the cause of action.  Jackson, 983 So.2d at 568.  For an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process. Hopkins v. State, 632 So.2d 1372, 1374 -1375 (Fla. 1994); State v. Johnson, 616 So.2d 1, 3 (Fla.1993).  Fundamental error or plain error is defined as “(a)n error that is so obvious and prejudicial that an appellate court should address it despite the parties' failure to raise a proper objection.  A plain error is often said to be so obvious and substantial that failure to correct it would infringe a party's due-process rights and damage the integrity of the judicial process.”  Black's Law Dictionary (8th ed. 2004).

In the present case Judge Bedinghaus, immediately after taking the jury verdict of guilty, sua sponte and without prior notice addressed the pending motion for mistrial.  As stated above, that motion addressed arguments that Appellee contended had been made in closing arguments before the presiding judge.  Initially, without affording the Assistant State Attorney an opportunity to argue, Judge Bedinghaus granted the motion.  The Assistant State Attorney then asked, “Judge, may I respond to that?”  The court responded, “No.  You need to?”  The Assistant State Attorney then said that the parties did not even agree on what language had been used in the disputed arguments and then made further responsive remarks, including, “I have additional case law in my office which I can provide to you right now, we have about four or five cases.”  Judge Bedinghaus responded “(y)our office is not a good place for it when you have this motion that he had taken under advisement.”  The attorney was then given no opportunity to retrieve the case law.  The judge did not afford the State Attorney a meaningful opportunity to be heard.  After a brief additional argument, the judge again stated the motion for mistrial was granted.  An entire jury trial had been immediately and summarily negated by a judge who had participated in none of it.  All of this was done notwithstanding the fact that there was no authority for any judge to rule on pending trial motions in the presiding judge's absence.  Fla. R. Crim. P. Rule 3.231.  This was a denial of due process and fundamental error.  See Vollmer v. Key Development Properties, Inc., 966 So.2d 1022, 1028 (Fla. 2nd DCA 2007); Turner v. State, 993 So2d 996 (Fla. 2nd DCA 2007); Williams v. Florida Parole Com'n, 977 So.2d 783, 784 -785 (Fla. 1st DCA 2008); Hartney v. Piedmont Technology, Inc. 814 So2d 1217 (Fla. 1st DCA 2002). 

Conclusion

          Based upon the foregoing, this court concludes that the order of the Honorable Susan P. Bedinghaus granting the Motion for Mistrial should be reversed.  This Court respectfully declines to address any remaining issues raised by the parties.

IT IS THEREFORE ORDERED that the order of the Honorable Susan P. Bedinghaus is reversed, and this matter remanded to the presiding trial court to address the motion for mistrial and take such further actions as the trial proceedings may require.

ORDERED at Clearwater, Florida this 4th day of October, 2009.

Original opinion entered by Circuit Judges Michael F. Andrews, Raymond O. Gross, &
R. Timothy Peters.  

 

cc:        Honorable Susan P. Bedinghaus

            Honorable James V. Pierce

            Office of the State Attorney

            Kimberly Nolen Hopkins, Esquire