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
v. Appeal No. CRC 09-00015 APANO
SEAN MICHAEL MCMULLEN
Opinion filed _____________________.
Appeal from an Order Granting
a Motion for Mistrial entered by
County Judge Susan P. Bedinghaus
Timothy F. Sullivan, Esquire
Attorney for Appellant
Kimberly Nolen Hopkins, Esquire
Attorney for Appellee
ORDER AND OPINION
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.
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,
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.
cc: Honorable Susan P. Bedinghaus
Honorable James V. Pierce
Office of the State Attorney
Kimberly Nolen Hopkins, Esquire