County Criminal Court: DISQUALIFICATION – judge – The trial court did not err in denying Appellant’s motion to disqualify, and Appellant did not preserve his prosecutorial comment challenge. Affirmed.  Masters v. State, No. CRC0902326CFAWS, (Fla. 6th Cir.App.Ct. January 10, 2011).











                                                                        UCN:              51-2009-CF002326A000WS

v.                                                                     Case No:       CRC09-02326CFAWS

                                                                        Lower No:    08-3595-MMAWA-01



STATE OF FLORIDA,                                                       



Appeal from Pasco County Court

County Judge Marc H. Salton


Jeffrey Sullivan, Esq.

for Appellant


Joseph Justice, A.S.A.

for Appellee







            Appellant raises two issues on appeal.  Appellant first argues that the trial court erred in denying his motion to disqualify the judge prior to trial.  Appellant also challenges prosecutorial comments.  We find that Appellant’s arguments lack merit.  This Court affirms the trial court as set forth below.






On September 21, 2008, Appellant was charged with driving while under the influence.  After a hearing on Appellant’s charge, Appellant filed a motion to recuse the trial judge.  Appellant alleged that (1) the trial judge smiled at his recent name change and gave disapproving looks; (2) Appellant feared he would not receive a fair trial due to his prior threats against the trial judge to file a complaint against him with the Judicial Qualifications Commission; and (3) the trial court was biased against Appellant since he successfully appealed a domestic violence case where he was the presiding judge.  Appellant’s motion to recuse the trial judge was denied on January 30, 2009. 

At trial, Trooper Adam Morris testified that he stopped Appellant for driving 60 miles per hour in a 45 mile per hour zone at about three o’clock in the morning on September 21, 2008.  Trooper Morris noticed a strong odor of alcohol emanating from Appellant’s facial area, despite his chewing gum.  Appellant’s face was flushed; his eyes were bloodshot and glassy.  Appellant had an obvious slur to his speech and had trouble pronouncing some words.  Appellant admitted that he had a few to drink.  Appellant swayed upon exiting the vehicle and when standing.  He also staggered when he walked.  Appellant’s performance on the field sobriety exercises indicated thirty signs of impairment.  As such, Trooper Morris arrested Appellant for DUI.  Appellant refused to submit to a breath test.  Trooper Morris further testified that he believed the passenger, Appellant’s wife, was also under the influence of alcohol.

Appellant testified that Trooper Morris lied to the jury.  Appellant and his wife went to a club where they ate, talked with friends, danced, played pool, and had three cherry-flavored vodka drinks each between the hours of 8:30 p.m. and 1:30 a.m.  Appellant and his wife took a nap on some of the couches until a bouncer woke them up at three o’clock in the morning.  They immediately left the club.  Appellant chewed some gum to wake up.  Appellant explained that his eyes were bloodshot because he had just woken up and the club was smoky.  He said that his speech was not slurred; it sounded like a person who had just woken up.  Appellant explained that he smelled like alcohol since he had spilled an entire glass of cherry-flavored vodka and cranberry juice all over himself. 

Appellant testified that he refused the breath test because he had passed the field sobriety exercises one hundred percent.  Appellant stated that, as his wife could also testify, he has “the balance of a ballet dancer.”  He was confident that he could pass the field sobriety exercises even with a deformed knee and two-inch boots.  Appellant described himself as performing the field sobriety exercises “like Nadia Comaneci in the 1976 Olympics on the balance beam.  That’s how good I did his test.”  Appellant furthered that his balance was “impeccable.”  Appellant only submitted to the field sobriety exercises because he knew he was sober and the officer said he would be arrested if he did not.

Denise Masters substantially corroborated her husband’s version of events before they were stopped by Trooper Morris.  Once the trooper pulled them over, Ms. Masters got out of the car and watched the field sobriety exercises.  She testified that Appellant’s voice and speech were perfectly clear.  Appellant did not sway during any of the field sobriety exercises, and he had a “straight poise about his walk.”  Appellant passed the finger-to-nose test “with flying colors.”  Ms. Masters did not believe that she was impaired that evening.      

A jury found Appellant guilty as charged.  Appellant was sentenced to forty-five days jail time, followed by one year of probation, and a one-year suspension of his license.  Appellant’s motion for belated appeal was granted on December 29, 2009.  



Appellant first challenges the order denying his motion to disqualify the trial judge.  An order denying a motion to disqualify a judge is reviewed de novo.  Armstrong v. Harris, 777 So. 2d 600, 602 (Fla. 2000).  A trial judge shall not pass on the truth of the facts alleged, only determine the legal sufficiency.  See, MacKenzie v. Super Kids Bargain Store, 565 So. 2d 1332 (Fla. 1990).  The facts alleged in the motion must be taken as true by the trial judge when ruling on the motion.  The trial court has a duty to determine whether the factual allegations are reasonably sufficient to create a well-founded fear that the moving party would not receive a fair and impartial trial.  Dendy v. State, 954 So. 2d 1221 (Fla. 4th DCA 2007).  Since Appellant’s motion was legally insufficient on its face, the trial court properly denied the motion.

Even viewing the allegations from Appellant’s perspective, they were insufficient to create a well-founded fear that he would not receive a fair and impartial trial.  First, the trial judge’s alleged smiling and disapproving looks would not rise to the level of creating a well-founded fear.  Second, Appellant feared he would not receive a fair trial due to his prior threats against the trial judge to file a complaint against him with the Judicial Qualifications Commission.  Judges, however, are not required to disqualify themselves solely upon a defendant’s expressed intent to file such a complaint.  Cherradi v. Andrews, 669 So. 2d 326 (Fla. 4th DCA 1996).  Finally, a successful appeal also does not form a proper basis for disqualification of a judge on the grounds of bias.  The fact that a judge has been reversed on a prior case involving the same defendant is not grounds to disqualify a judge in a future proceeding.  McGauley v. Goldstein, 653 So. 2d 1108, 1109 (Fla. 4th DCA 1995).  Under the applicable standard, Appellant’s motion was legally insufficient and was properly denied, as his factual allegations would not create a well-founded fear of not receiving a fair and impartial trial.  Lages v. State, 685 So. 2d 968, 969 (Fla. 2d DCA 1996); Cave v. State, 660 So. 2d 705 (Fla. 1985).  

            Appellant next argues that he is entitled to a new trial because the prosecutor improperly bolstered the credibility of the arresting trooper during closing arguments.  The prosecutor commented that the recognition that Trooper’s Morris has received was not an attack on his credibility.  Defense counsel objected, which was sustained.  Defense counsel, however, did not move for a curative instruction or move for a mistrial.  The issue is therefore not preserved for appellate review.  Id. at 797; James v. State, 695 So. 2d 1229, 1234 (Fla. 1997).

            Assuming, arguendo, that the issue was properly preserved for appellate review, Appellant’s argument still lacks merit.  During closing argument, the State was commenting on the evidence presented and what conclusions the jury should draw.  See, Hill v. State, 515 So. 2d 176, 179 (Fla. 1987); McArthur v. State, 801 So. 2d 1037, 1039 (Fla. 5th DCA 2001).  Defense counsel opened this door and invited any error.  Significantly, on cross-examination of Trooper Morris, defense counsel asked extensive questions about his recognition in arresting individuals for driving while under the influence.  The State was then free to address the matter during closing argument. See, Tanzi v. State, 964 So. 2d 106, 115 (Fla. 2007); Ellison v. State, 349 So. 2d 731, 732 (Fla. 3d DCA 1977).  Even if any error occurred, it was harmless given the overwhelming evidence, including the thirty different signs of impairment, leaving no reasonable probability that the error affected the verdict.  Therefore, it is

            ORDERED that Appellant’s judgment and sentence are hereby AFFIRMED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 10th day of January 2011.

            Original order entered on January 10, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.