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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
GEORGE ZIMMERMAN,
Petitioner,
v. CASE NO. 5D12-3198
STATE OF FLORIDA,
Respondent.
_____________________________/
RESPONSE TO PETITION FOR WRIT OF PROHIBITION
COMES NOW, the Respondent, State of Florida, pursuant to this
Courts August 14, 2012, order to respond and states:
PROCEDURAL AND FACTUAL STATEMENT
Petitioner is charged by information with one count of second
degree murder for the shooting death of Trayvon Martin on February
26, 2012. (Pet. Appx. Page 1). Petitioner filed a Motion to
Disqualify Trial Judge on April 16, 2012, pursuant to Florida Rule
of Judicial Administration 2.330(d)(2), i.e., that the judge is
either an interested party to the matter, related to an interested
party, related to counsel, or is a material witness for or against
one of the parties to the cause. (Appendix A). In it, Petitioner
argued that the first assigned judge, who is married to a law
partner of the Nejame Law Firm, should be disqualified because Mark
Nejame had been consulted by Petitioner and his family prior to
Petitioner hiring his current attorney. Id. The first trial judge
granted the motion on April 18, 2012, finding the cumulative effect
of events provided a legally sufficient basis for the Court to
E-Copy Received Aug 23, 2012 2:
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grant the motion. (Appendix B). However, the first trial judge
found the individual bases argued, i.e., that the courts husband
is a partner at the Nejame Law Firm and Mark Nejame is acting as a
legal analyst for CNN, were legally insufficient. (Appendix B).
Moreover, the allegation that Mark Nejame spoke to Petitioner and
his family and received confidential information was also legally
insufficient as Petitioner admitted he had no knowledge of any
communications between Mark Nejame and the judges spouse. Id.
On April 20, 2012, Petitioner was before the successor judge,
Circuit Court Judge Kenneth R. Lester, Jr., upon a motion to set
bond filed by Petitioner. (Pet. Appx. Page 65). At the hearing,
counsel for Petitioner advised the court that he was providing the
court with Petitioners current passport which was the only
passport he had. (Pet. Appx. Page 363). Petitioners wife testified
after being sworn. (Pet. Appx. Pages 367-368). Shellie Zimmerman
testified that she had no income and no major assets that could be
liquidated to assist in raising money for a bond. (Pet. Appx. Pages
370-371). She also was aware that they were seeking to have her
husband declared indigent because they had no financial means to
assist in paying for costs. (Pet. Appx. Page 371).
The State asked Shellie Zimmerman about Petitioners ability
to make bond amount. Petitioners wife said they had no money.
(Pet. Appx. Page 382). The State inquired about the website, butShellie Zimmerman indicated she currently did not know how much
money had been raised; that her brother-in-law would know. (Pet.
Appx. Page 382). She also denied even having an estimate of the
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1At the hearing held on June 29, 2012, the accountantexplained that a check for $122,393.00, dated April 25, 2012, wasdeposited into counsels trust account on April 27, 2012. (Pet.Appx. Page 143). The difference between the total amounttransferred from the PayPal account into the Zimmermans accountsand the money deposited into counsels trust account is $49,486.96.(Pet. Appx. Page 144).
3
amount of money raised in the website or having spoken with her
brother-in-law about the money. (Pet. Appx. Page 383). After
argument of counsel, the judge set the bond at $150,000.00. (Pet.
Appx. Pages 65,475,480,481,483).
At a hearing held on April 27, 2012, on various motions,
counsel for Petitioner disclosed the fact that approximately
$204,000.00 had been donated to Petitioner via the internet into a
PayPal account. (Pet. Appx. Page 96). Counsel further advised the
court that when Petitioner was before the court at the April 20,
2012, bond hearing, approximately $150,000.00 was available that
was not disclosed to the court by the family. (Pet. Appx. Pages
96,97). However, according to counsel, Petitioner had not divulged
this information to counsel until after the bond hearing. (Pet.
Appx. Pages 95-96). Counsel explained that the money had been
placed in a trust account under his control, and there was
$150,000.00 available to the family as of last Friday.1 (Pet. Appx.
Page 97).
The State argued that there was a change in circumstances
involving the bond and asked that the court address the matter as
the family had represented they had no money when, in fact, they
did have money. (Pet. Appx. Page 98). The trial judge, while
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recognizing that false websites are created during disasters and
such, asked counsel to discover the genesis of the account, who was
in charge of the account, the date of any payments made to the
account, and who has authority on the account. (Pet. Appx. Page
99). The judge instructed the defense to turn over that information
to the State. Id. The court was unsure of its authority to order
Petitioner to deposit or move any funds and needed to know who has
authority over the account. (Pet. Appx. Pages 99-100).
The trial judge entered an order on April 30, 2012,
referencing these matters addressed at the April 27, 2012, hearing,
regarding a gag order. (Appendix C). In it, the trial court noted
that documents with protected information should be filed in
redacted form for the public record and in unredacted form under
seal for in camera review. (Appendix C).
On June 1, 2012, the State filed a motion to revoke bond.
(Appendix D). In it, the State alleged that Petitioner and his
family members misled the trial judge as to his possession of a
United States passport as well as his and his familys financial
circumstances. (Appendix D). The State set forth Shellie
Zimmermans testimony at the bond hearing wherein she testified
under oath that she and her husband had no financial means or
assets they could liquidate to assist in paying for a bond.
(Appendix D, Pages 3-4). She also had testified on cross-examination that she was aware of the website but did not know the
amount of money that had been collected. (Appendix D, Page 4).
Furthermore, the State cited to transcript excerpts of
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recorded jail conversations prior to the bond hearing between
Petitioner and his wife. While incarcerated at the Seminole County
Jail, Petitioner had discussed with his wife the amount of money in
the website account and that it was transferred into Petitioners
credit union account and then, at Petitioners direction, into
Shellie Zimmermans personal account. (Appendix D, Pages 4-6).
According to the credit union statements, on April 19, 2012,
Shellie Zimmermans account reflected over $135,000.00 (Appendix D,
Page 7). The State asserted that Petitioner intentionally deceived
the court with the assistance of his wife. Id. The State also
contended Petitioner and his wife spoke in code in order to
disguise what they were doing. Id. The State further alleged that
all of this occurred prior to the sworn bond hearing testimony on
behalf of Petitioner that he was indigent and his wife had no
money. Id.
The State pointed out that Petitioner also represented to the
court, through his attorney (who the State was not alleging was
privy to what Petitioner was doing), that he was turning in his
United States passport when, in fact, Petitioner possessed a second
valid passport. Id. The State asked that the judge revoke the bond
set at $150,000.00 based upon false representations by Petitioner
and his family, or increase the bond substantially. Id.
A hearing was held on June 1, 2012, at which the Statesmotion to revoke bond was addressed. (Pet. Appx. Pages 236-349).
The judge noted its surprise that the State had not filed anything
against Petitioners wife as there was no doubt she was aware of
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what had transpired. (Pet. Appx. Pages 350-351). Referencing
Florida Rule of Criminal Procedure 3.131, the judge noted that in
subsection 5 all information provided by a defendant in an attempt
to obtain bond shall be accurate, truthful and complete without
omissions to the best knowledge of the defendant. (Pet. Appx. Page
350). The judge asked if the jail conversations predated the bond
hearing and the State indicated they had, as they were conducted on
April 12th, April 15th, April 16th and April 17th. (Pet. Appx. Page
351). The judge stated that Petitioner was not entitled to sit
quietly allowing his wife to testify falsely or his attorney to
unknowingly make misrepresentations. (Pet. Appx. Page 351). The
judge revoked the bond in that good cause existed based upon the
material misrepresentations relied upon by the court. (Pet. Appx.
Page 352). The trial court also informed Petitioners counsel that
he could reset the case for a bond hearing to allow Petitioner to
explain to the court what happened. Id.
On June 11, 2012, an order revoking bond was rendered based on
Petitioners lack of candor. (Pet. Appx. Page 115). In the order,
the trial court held as follows:
The Defendant, charged with second-degreemurder, was released on $150,000 bond on April20, 2012. At the hearing, the Court heardtestimony regarding the Defendants financialmeans from Shelly Zimmerman, the Defendantswife. She testified under oath that she and
the Defendant had no financial means andshould be declared indigent for costs. Sheacknowledged the existence of a legal fund,administered by her brother-in-law, which hadcollected online donations, but she furthertestified that she had no knowledge of howmuch money was presently available in that
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fund. It was also affirmatively representedthat the Defendant had turned in his passport.The Defendant gave limited testimony at thebond hearing on different matters, but did notcontradict or supplement his wifes testimonyabout his financial resources or possession of
a passport.
The State filed a Motion to Revoke Bond whichwas heard on June 1, 2012. At the hearing onthe motion, the State alleged that, contraryto the testimony provided at the bond hearing,she and the Defendant had discussed the amountof money in the fund and how to gain access toit. The State cited excerpts from recordedconversations made at the jail between theDefendant and his wife to support itsassertions of deception. With regard to theDefendants present financial means, the State
notes that they spoke in code to make itsound like they were talking about negligiblesums of money. To the contrary, the evidenceshows that, in the five days prior to the bondhearing, approximately $135,000 wastransferred to the legal fund into theZimmermans bank account. This was notdisclosed at the bond hearing.
Also, it was alleged that the Defendant wasuntruthful regarding his possession of a validpassport. At the bond hearing, the Defendantsurrendered passport number 301813125, whichhad been issued on May 22, 2002, and had anexpiration date of May 21, 2012. The defenseasserted that this was the Defendants onlypassport. However, it was later discoveredthat the Defendant was actually in possessionof another passport, number 017355779, whichhad been issued on March 26, 2004 and expiredon March 24, 2014. It was issued as areplacement when the Defendant notified theDepartment of State that he had lost passportnumber 301813125. Neither the Defendant norhis wife mentioned the existence of this
second passport during their testimony.The State argued against setting a bond forthe Defendant on the basis that thecircumstances of this case demonstrate that heis a serious threat to the community, basedupon his prior violent history, the repeated
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refusal to respect law enforcementsdirectives, and the fact that he is chargedwith killing an unarmed teenager. The Court,based upon the information presented,determined that $150,000 was an appropriatebond to ensure the Defendants presence in
court and also to protect the community. TheDefendant was also allowed to leave the stateand keep his location confidential in order toensure his personal safety.
Had the Court been made aware of the truefinancial circumstances at the bond hearing,the bond decision might have been different. Abond that a Defendant cannot afford istantamount to no bond at all. While the Courtwould have been authorized under State v.Arthur, 390 So. 2d 717 (Fla. 1980), to keepthe Defendant in custody without granting a
bond, the Court exercised its discretion andset what was believed to be a reasonable bond.In determining the reasonable bond amount, theCourt balanced the Defendants right to befree from custody, while still ensuring hisappearance in court, with the communityssafety if he were to be released. Hisfinancial status was a key factor in thisbalancing test.
(Pet. Appx. Pages 115-116)(citation omitted). The trial court
weighed several factors both for and against revocation, giving
much weight to Petitioners lack of respect for the law or the
integrity of the judicial process, noting that the valid passport
and bank account were relevant to Petitioners access to means of
flight. (Pet. Appx. Page 117). The judge explained that this factor
was dispelled based upon evidence from the Department of State. Id.
The trial judge revoked Petitioners bond. Id. Petitioner made no
objection to this order revoking bond and certainly did not
thereupon seek recusal of the court. Instead, he filed a second
motion seeking bond, to be decided by the very same judge.
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A hearing was held on June 29, 2012, upon, inter alia,
Petitioners motion to reset bond. (Pet. Appx. Pages 118,132).
Petitioner presented the testimony of an accountant regarding the
monies owed by Petitioner and his wife as well as the incoming
funds from the website account which had a net total worth of
$197,567.91. (Pet. Appx. Pages 135-144). There were seven or eight
transfers of money from the PayPal account into Petitioners
account in increments less than $10,000.00; for example, in amounts
of $9,999.00 and $9,000.00. (Pet. Appx. Pages 139,149,151). Those
same funds were then transferred into Shellie Zimmermans accounts
and then, a couple days later, transferred back into Petitioners
account which then found their way into counsels trust account.
(Pet. Appx. Pages 141,142-143).
On cross-examination of the accountant, the State inquired
whether the accountant would ever refer to $9,000.00 as nine
dollars. (Pet. Appx. Page 145). The accountant indicated he would
not and agreed with the State that in doing so, the only conclusion
would be that the persons were speaking in code. Id. On April 17,
2012, Petitioner had approximately $80,000.00 in his account, while
his wife had $50,000.00, for a total of $132,000.00. (Pet. Appx.
Page 153). On April 17th, money was transferred from Petitioners
account to his wifes account so that less than $20,000.00 was left
in Petitioners account and his wifes account reflected$110,000.00. (Pet. Appx. Page 154). Further transfers were made on
April 18th so that Petitioners account showed a balance of about
$10,000.00, and the wifes account reflected a balance around
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$120,000.00. (Pet. Appx. Pages 154-155). More money was transferred
out of Petitioners account before the bond hearing and the money
was returned to Petitioners account after the bond hearing. (Pet.
Appx. Pages 155-156). The accountant agreed this was done to make
it appear that he didnt have the money. (Pet. Appx. Page 157).
The money in the PayPal account was transferred through
Petitioners e-mail account with a password, so whoever had access
to Petitioners e-mail and password was the person transferring the
funds. (Pet. Appx. Page 161).
The defense presented other evidence and then indicated it was
counsels intent to allow Petitioner to speak to the court without
being subject to cross-examination. (Pet. Appx. Pages 229,230). The
State objected to being foreclosed from cross-examination. Id. The
judge suggested this was a back-door attempt to avoid some harsher
penalties pursuant to section 903.035, but counsel denied trying to
back-door it. (Pet. Appx. Pages 230,232). Counsel suggested the
trial court could inquire after Petitioner made his statement, but
the judge stated that the State should have the opportunity to
question Petitioner since this issue is not personal to the judge,
but has to do with what he did to the system and the process. (Pet.
Appx. Pages 230-231). Thus, the judge concluded, Petitioner could
testify but he would be subject to cross-examination. (Pet. Appx.
Page 231). However, Petitioner was also free to invoke his FifthAmendment right. (Pet. Appx. Page 232). The State made it clear it
wanted the opportunity to cross-examine Petitioner. Id.
After consultation, the defense did not call any more
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witnesses. Id. Upon argument of counsel, the judge indicated it
would await the additional evidence and make a ruling. (Pet. Appx.
Pages 232-252).
Less than a week later, on July 5, 2012, the trial court
entered a lengthy order setting bail. (Pet. Appx. Pages 254-261).
The questions before the court were whether a defendant is entitled
to bail when he presents false testimony at a prior bond hearing
and what recourse there is when a defendant has shown a blatant
disregard for the judicial system. (Pet. Appx. Page 255). The trial
court, echoing statements which had been made to various media
outlets by Petitioners counsel regarding Petitioner having been
less than fully candid with the court, (Appendix E, Page 8), held:
Under any definition, the Defendant hasflouted the system. Counsel has attempted toportray the Defendant as being a confusedyoung man who was fearful and experienced amoment of weakness and who may also have actedout of a sense of betrayal by the system.Based upon all of the evidence presented, thisCourt finds the opposite. The Defendant hastried to manipulate the system when he hasbeen presented the opportunity to do so. He isan adult by every definition; Trayvon Martinis the only male whose youth is relevant tothis case. The Defendant has taken courses incriminal justice with the intention ofbecoming a police officer, an attorney, ajudge, or a magistrate like his father. He hasbeen arrested before, having entered andsuccessfully completed a pre-trialintervention program. He has also obtained aninjunction and had an injunction entered
against him. The injunction against him hasobviously been dissolved at some point for himto have validly obtained a permit to carry thefirearm used to shoot Trayvon Martin. He alsohad the wherewithal to set up a website tocollect donations to help defray the costs ofhis defense. Thus, before this tragic
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incident, the Defendant had a verysophisticated knowledge of the criminaljustice system over and above that of theaverage, law-abiding citizen.
Moreover, any sense of betrayal would be
unreasonable. He was cooperative with theSanford Police Department in that he did givenumerous statements upon request. The Statenotes that his stories changed each retelling,but on the surface he should be deemed to havebeen cooperative. However, he clearlyunderstood that he was being investigated forcommitting a homicide and, while he believesthat he was justified in his actions, therehas been nothing presented which indicatesthat he was misled into believing that hewould not be charged with a crime. Contrary tobeing betrayed, the Defendant received normal,
reasonable treatment and was grantedreasonable bail.
Contrary to the image presented by theDefendant not by the evidence but only byargument of counsel, it appears to this Courtthat the Defendant is manipulating the systemto his own benefit. The evidence is clear thatthe Defendant and his wife acted in concert,but primarily at the Defendants direction, toconceal their cash holdings. They spoke inrudimentary code to conceal the true amount ofmoney they were dealing with. Adam Magill, theDefendants forensic accounting expert, didnot dispel this Courts concern that theDefendant was seeking to hide assets. Headmitted that one interpretation of theDefendants actions was to hide money, butalso stated that it was not a very effectiveway to do so because all of the banktransactions were traceable. The Defendantalso neglected to disclose that he had a validsecond passport in his safe deposit box.Notably, together with the passport, the moneyonly had to be hidden for a short time for him
to leave the country if the Defendant made aquick decision to flee. It is entirelyreasonable for this Court to find that, butfor the requirement that he be placed onelectronic monitoring, the Defendant and hiswife would have fled the United States with atleast $130,000 of other peoples money. The
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fact that they have spent the moneyresponsibly (i.e., without going out toexpensive dinners or splurging onnonessentials) is of no consequence in thisanalysis. The Defendant didnt present anywitness to affirmatively state that the
Defendant has not received funds from anyother source.
(Pet. Appx. Pages 255-256). The trial court, while admitting the
analogy was not exact, compared Petitioners deception at the bond
hearing to violating a bond condition. (Pet. Appx. Pages 256-258).
The court found its discretion limited by State v. Paul, 783 So. 2d
1042 (Fla. 2001). (Pet. Appx. Pages 257-258). The court addressed
each of the factors set forth in section 903.046(2), Florida
Statutes, and concluded that a bond of $1,000,000.00 was fair based
upon the changed circumstances. (Pet. Appx. Pages 258-261).
In his Motion to Disqualify Trial Judge dated July 13, 2012,
Petitioner alleges he has a reasonable fear he cannot get a fair
trial or stand your ground hearing in that the trial courts order
setting bail included gratuitous, disparaging remarks about Mr.
Zimmermans character; advocates for Mr. Zimmerman to be prosecuted
for additional crimes; offers a personal opinion about the evidence
for said prosecution and continues to hold over Mr. Zimmermans
head the threat of future contempt proceedings. (Pet. Appx. Page
266-274). The State filed a response to the motion arguing that the
allegations were legally insufficient and that some of the facts
asserted in the motion were inaccurate, misleading or incomplete.
(Appendix E).
The trial court issued an order on August 1, 2012, denying the
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motion as legally insufficient. (Pet. Appx. Pages 280-281). In a
footnote, the trial court noted that this was not the first motion
to disqualify a judge filed by Petitioner. (Pet. Appx. Page 280).
Petitioner had filed a motion to disqualify the first judge
assigned to the case on the basis that the judge was related to an
interested party. Id. However, the first judge found the grounds
legally insufficient in that she did not have an interest that
could be substantially affected, nor was there any allegation that
she would be exposed to extra-judicial information because of her
husbands employment. Id. As such, arguably, the first judge
disqualified herself pursuant to subsection Florida Rule of
Judicial Administration 2.330(d)(1), rather than (d)(2). Id. Yet,
in an abundance of caution, the successor trial judge applied the
standard for an initial motion to disqualify, rather than a
successive motion. Id.
On August 13, 2012, Petitioner filed a petition for writ of
prohibition seeking review of the order denying the motion to
disqualify. On August 14, 2012, this Court issued its order to
respond to the Petition for Writ of Prohibition.
MERITS
The writ of prohibition is an extraordinary remedy by which a
court may prevent a lower court from acting outside of its
jurisdiction. Mandico v. Taos Construction, Inc., 605 So. 2d 850,853 (Fla. 1992). Prohibition is the appropriate avenue for relief
after the denial of a motion to disqualify a trial judge because of
bias or other reasons. Castro v. Luce, 650 So. 2d 1067 (Fla. 2d DCA
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1995). Rule 2.330(d)(1) provides "[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 . . . ." A judge considering a motion to
disqualify is limited to determining the legal sufficiency of the
motion itself and may not pass on the truth of the facts alleged.
Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005); Fla. R. Jud.
Admin. 2.330(f).
The standard for viewing the legal sufficiency of a motion to
disqualify is whether the facts alleged, which must be assumed to
be true, would cause the movant to have a well-founded fear that he
or she will not receive a fair trial at the hands of that judge.
See Gore v. State, 964 So. 2d 1257 (Fla. 2007); see also 38.10,
Florida Statutes (2011); Fla. R. Jud. Admin. 2.330(d)(1). A motion
to disqualify will be dismissed as legally insufficient if it fails
to establish a well-grounded fear on the part of the movant that he
will not receive a fair hearing. Griffin v. State, 866 So. 2d 1,
11 (Fla. 2003). Moreover, "mere subjective fear[] of bias will
not be legally sufficient, rather, the fear must be objectively
reasonable." Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005)
(quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)).
The standard of review of a trial judge's determination on a
motion to disqualify isde novo
. Chamberlain v. State, 881 So. 2d1087, 1097 (Fla. 2004), cert. denied, 544 U.S. 930 (2005). Whether
the motion is legally sufficient is a question of law. Barnhill v.
State, 834 So. 2d 836, 843 (Fla. 2002).
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However, where a previous motion to disqualify has been
granted pursuant to subdivision (d)(1), a successor judge shall not
be disqualified unless the successor judge rules that he or she is
not fair or impartial and may rule on the truth of the allegations
in the motion. See Fla. R. Jud. Admin. 2.330(g). An order denying
a motion to disqualify a successor judge is reviewed under an abuse
of discretion standard. King v. State, 840 So. 2d 1047 (Fla. 2003).
Legal sufficiency:
To warrant recusal, a motion for disqualification must
concretely allege a well-founded, reasonable fear on the part of
the defendant that he or she will not receive a fair trial before
a particular judge. See Asay v. State, 769 So. 2d 974, 980 (Fla.
2000); Rivera v. State, 717 So. 2d 477, 480-81 (Fla. 1998); Jackson
v. State, 599 So. 2d 103, 107 (Fla. 1992). A judge is not required
to abstain from forming mental impressions and opinions during the
course of the presentation of evidence. Mobil v. Trask, 463 So. 2d
389, 390 (Fla. 1st DCA 1985). Here, assuming the allegations are
true as required by the rule, the complaints raised by Petitioner
are legally insufficient.
The term legal sufficiency encompasses morethan mere technical compliance with the ruleand the statute. The standard for viewing thelegal sufficiency of a motion to disqualify iswhether the facts alleged, which must beassumed to be true, would cause the movant to
have a well-founded fear that he or she willnot receive a fair trial at the hands of thatjudge. See Fla. R. Jud. Admin. 2.330(d)(1).Further, this fear of judicial bias must beobjectively reasonable. See State v. Shaw, 643So. 2d 1163, 1164 (Fla. 4th DCA 1994). Thesubjective fear of a party seeking the
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disqualification of a judge is not sufficient.See Kowalski v. Boyles, 557 So. 2d 885 (Fla.5th DCA 1990). Rather, the facts and reasonsgiven for the disqualification of a judge musttend to show the judge's undue bias,prejudice, or sympathy. Jackson v. State, 599
So. 2d 103, 107 (Fla. 1992); see also Riverav. State, 717 So. 2d 477, 48081 (Fla. 1998).Where the claim of judicial bias is based onvery general and speculative assertions aboutthe trial judge's attitudes, no relief iswarranted. McCrae v. State, 510 So. 2d 874,880 (Fla. 1987). Parker, 3 So.3d at 982.
Krawczuk v. State, 37 Fla. L. Weekly S270 (Fla. Apr. 12, 2012).
In Waterhouse v. State, 792 So. 2d 1176, 1192(Fla. 2001), the trial judge issued a muchmore egregious statement to the Florida Parole
and Probation Commission to the effect thatthe subject is a dangerous and sick man andthat many other women have probably sufferedbecause of him. We rejected the claim thatsuch a statement by a trial court judgeprovided a basis for the recusal of the trialjudge in subsequent proceedings:
[T]he comment to the Commission didnot constitute a prejudgment of anypending or future motions that thedefendant might file, and was notmade outside the official post-sentence investigative process in amanner indicating a predisposed biasagainst the defendant. Given thefacts in this case, the statement tothe Commission indicates nothingmore than the judge's opinion afterhaving heard evidence relating totwo exceedingly cruel and brutalmurders of women who were sexuallyassaulted. The circumstances ofthese murders, coupled withWaterhouse's own admission that he
had a problem with sex andviolence, would lead any reasonableperson to conclude that Waterhouseis a dangerous and sick man.
Id. at 1195; see also Rivera v.State, 717 So. 2d 477, 480-81 (Fla.
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2Pursuant to Rule of Judicial Administration 2.160(e), amotion for recusal must be filed within a reasonable time not toexceed 10 days after discovery of the facts constituting thegrounds for the motion. Clearly some of these claims, filed morethan ten days after the complained-of rulings, are untimely.
18
1998) (finding that the writtenresponse by the trial judge to aparole commission inquiry that I aminalterably opposed to anyconsideration for Executive Clemencyand I believe the sentence of the
court should be carried out as soonas possible was insufficient todisqualify the judge from furtherpresiding over the case).
Doorbal v. State, 983 So. 2d 464, 476-77 (Fla. 2008).
Petitioner complains about rulings in the past in his
background section, but it is well established that [t]he fact
that the judge has made adverse rulings in the past against the
defendant, or that the judge has previously heard the evidence, or
allegations that the trial judge had formed a fixed opinion of the
defendant's guilt, even where it is alleged that the judge
discussed his opinion with others, are generally considered
legally insufficient reasons to warrant the judge's
disqualification. Rivera, 717 So. 2d at 481 (quoting Jackson v.
State, 599 So. 2d at 107; see also Areizaga v. Spicer, 841 So. 2d
494, 496 (Fla. 2d DCA 2003)(It is well established that a trial
courts prior adverse rulings are not legally sufficient grounds
upon which to base a motion to disqualify). Moreover, any objection
to some of these rulings is untimely2. As such, the background
complaints regarding past rulings by the trial court, especially
those that were also contrary to the States position, are legally
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insufficient and untimely.
However, Petitioners primary complaints are with the trial
courts findings in the order granting bond that he manipulated the
system and demonstrated a disregard for the system. Of course, this
finding was made after it was established that Petitioner and his
wife knew they had received donations of more than $200,000.00 from
a website prior to the first bond hearing, and that they had moved
the money from Petitioners account to his wifes account before
the hearing and then back to Petitioners account after the bond
hearing. Furthermore, it was unrefuted that Shellie Zimmerman knew
to the contrary when she testified under oath at the first bond
hearing that neither she nor her husband had any income and no
major assets that could be liquidated to assist in raising money
for a bond. (Pet. Appx. Pages 370-371). Mrs. Zimmerman also
indicated she was aware the defense was seeking to have her husband
declared indigent because they had no financial means to assist in
paying for costs. (Pet. Appx. Page 371).
It is unrefuted that this testimony was, at best, less than
honest if not intentionally misleading especially in light of the
audiotapes which reveal Shellie Zimmerman and Petitioner
discussing, prior to the first bond hearing, the website money at
the jail in code by referring to the amounts, for example, as nine
dollars rather than $9,000.00. Defense counsel conceded during hisargument in the second bond hearing that they didnt tell you the
truth about the money. (Pet. Appx. Page 251). Thus, Petitioner has
shown himself willing to play the system, if possible. In its order
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setting bond, the trial court simply chastised Petitioner in an
attempt to get his attention so that it would not happen in the
future, just like a judge chastising a defendant who has violated
a bond condition or violated his probation.
Petitioner also asserts that the court continues to hold
over Petitioner the possibility of contempt proceedings. (Pet.
Appex. Pages 12-13). However, examination of the courts order
indicates that Petitioner has taken this reference out of context;
the courts reference to its declination to exercise contempt
powers comes directly after a discussion of the Third District
Court of Appeals opinion in State v. Washington, 37 Fla. L. Weekly
D1535 (Fla. 3d DCA June 27, 2012), wherein the list of potential
remedies of bond conditions, which include the arrest and
commitment of a defendant. . . harsher conditions of pretrial
release. . . increase the amount of bond. . . pretrial detention.
. . [or] direct or indirect criminal contempt. Id. (Pet. Appendix
Page 350). Immediately after quoting this language from Washington,
the trial court discussed each alternative including, but not
limited to, the possibility of contempt proceedings. Id. The so-
called threat, if there was one, was contained in the language
taken verbatim from Washington.
Notably, the trial court did not label Petitioner a liar;
instead, the court found he had manipulated the system. Whilegranting the motion to set a bond, the judge also chastised
Petitioner for having allowed misrepresentations about his passport
and financial situation to be presented to the court, facts which
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are unrefuted and which clearly affected the trial courts ruling
on bond. This does not require disqualification of the trial judge.
See, e.g., Bert v. Bermudez, 37 Fla. L. Weekly D1465 (Fla. 3d DCA
June 29, 2012)(trial judges admonitions of counsel and threat to
hold counsel in contempt did not require disqualification as judge
expressed no views as to credibility, made no comment suggesting he
had pre-judged any issue, harbored any bias, or said anything to
support finding that the petitioners fear is reasonable).
According to Petitioner, the comments of which he complains
were gratuitous. Even assuming this to be the case,
[g]enerally, mere characterizations andgratuitous comments, while offensive to thelitigants, do not in themselves satisfy thethreshold requirement of a well-founded fearof bias or prejudice. See Oates v. State, 619So. 2d 23, 26 (Fla. 4th DCA), review denied,629 So. 2d 134 (Fla. 1993); Nassetta v.Kaplan, 557 So.2d 919, 921 (Fla. 4th DCA1990). "A judge may form mental impressionsand opinions during the course of presentationof evidence, as long as she does not prejudgethe case." Brown v. Pate, 577 So. 2d 645, 647(Fla. 1st DCA 1991)."
Wargo v. Wargo, 669 So. 2d 1123, 1124-1125 (Fla. 4th DCA 1996).
Remarks regarding a court's feelings after having heard
evidence, even if gratuitous, are not grounds for recusal unless
there is an objectively reasonable basis for concluding that the
judge is personally biased or will in the future fail to be
impartial.The facts and reasons given fordisqualification of a trial court judge mustbe such that the actions of the trial courtjudge show personal bias or prejudice. SeeLevine v. State, 650 So. 2d 666 (Fla. 4th DCA
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1995). The remarks of the trial court judge inthe present case fail to demonstrate personalbias or prejudice and cannot be interpreted ascreating in the petitioners an objectivelyreasonable well-grounded fear that thepetitioners will not receive a fair and
impartial trial.
The facts here are more analogous to the caseof Nassetta v. Kaplan, 557 So. 2d 919 (Fla.4th DCA 1990), where, in response to a motionto reduce bail, the trial judge's comment,that he did not care whether the lawyer,charged with fraud and grand theft, got out ofjail, did not require recusal. In ruling on amotion for disqualification, the FourthDistrict held that the trial judge's"gratuitous remarks" did not require recusal.See Nassetta, 557 So. 2d at 920; see also
Benson v. Tharpe, 685 So. 2d 1363, 1364 (Fla.2d DCA 1996) (holding that judge's commentthat his "hands were tied" did not establishthat he was predisposed to impose adultsanctions for juveniles, but meant that hisrulings were contingent upon a decision by theappellate court). Likewise, the remarks of thetrial judge here, "I'm not going to bethreatened" and "I don't care what the ThirdDistrict does with this case," do not requiredisqualification. The first is a gratuitouscomment showing the judge's attempt to remainneutral, and the second indicates that he willabide by a decision from this Court directinghim on whether to set the case for trial.Neither comment is grounds for the granting ofa petition for writ of prohibition."
Rolle ex rel. Dabrio v. Birken, 984 So. 2d 534, 536 (Fla. 3d DCA
2008)(footnote omitted).
Likewise, we recently pointed out that a "mere'subjective fear' of bias will not be legallysufficient, rather, the fear must be
objectively reasonable." Arbelaez v. State,898 So. 2d 25, 41 (Fla. 2005) (quoting Fischerv. Knuck, 497 So. 2d 240, 242 (Fla. 1986)). Wedo not find Mansfield's allegations of fear tobe objectively reasonable. See also Asay v.State, 769 So. 2d 974 (Fla. 2000). Our casessupport the trial court's denial of the motion
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to disqualify, and we affirm thetrial judge'sorder.
Mansfield v. State, 911 So. 2d 1160, 1171 (Fla. 2005).
Moreover, the authority relied upon Petitioner is
distinguishable in that the judges in those cases stated
categorically that they did not find the party credible and would
not believe the party either now or in the future. Brown v. St.
George Island, Ltd., 561 So. 2d 253, 257 (Fla. 1990)(Judge Rudd,
without having heard testimony from Stocks, tossed the affidavit
back and said, If [the party] were here I wouldn't believe him
anyway.); Campbell Soup Co. v. Roberts, 676 So. 2d 435 (Fla. 2d
DCA 1995)(After examining the affidavit, [the court] expressed
doubt as to its reliability, commenting that [I]f the president
of Campbell Soup were to file a similar affidavit, I don't know how
much credence I would give it if it had the same things in it.);
Owens-Corning Fiberglas Corporation v. Parsons, 644 So. 2d 340, 341
(Fla. 1st DCA 1994)(trial judge made a comment about a party's
believability with the court is about as thin as a balloon); and
Deauville Realty Co. v. Tobin, 120 So. 2d 198, 202 (Fla. 3d DCA
1960), cert. denied, 127 So. 2d 678 (Fla. 1961)(judge stated post-
trial that he would not believe an agent of one of the parties who
the judge believed had lied on the stand). Here, there has been no
such statement by the trial judge and the unrefuted truth is that
Petitioner did allow others to mislead the court into granting him
a very beneficial bond which authorized him to leave the State
despite being charged with second degree murder and facing a
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potential life sentence.
Similarly, the judge mentioned the courts contempt power and
section 903.035(3), Florida Statutes, in an attempt to get
Petitioners attention that his actions in allowing others to
mislead the court about his passport and financial situation
constituted a manipulation of the system and to ensure it would not
happen again. Notably, the judge ruled in Petitioners favor and
granted him a bond revealing that the court is fully capable of
following the law even after finding Petitioner manipulated the
system. Cf. Brown, 561 So. 2d at 257 n. 7 (We hasten to add that
our holding should not be construed to mean that a judge is subject
to disqualification...simply because of making an earlier ruling in
the course of a proceeding which had the effect of rejecting the
testimony of the moving party. At the very least...there must be a
clear implication that the judge will not believe the complaining
partys testimony in the future.). The comments now complained of
certainly do not indicate any predisposition as to future motions,
and indicate nothing more than the judges opinion after having
heard evidence.
None of the comments by the trial court rise to the level of
being legally sufficient to establish an objectively reasonable
fear by Petitioner that he will not receive a fair trial by the
judge. Instead, the judge was simply giving Petitioner a welldeserved tongue lashing for allowing others to mislead the court
about his passport and his financial situation. Moreover, the trial
court did not rule against Petitioner. The judge again set a bond
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for Petitioner, and Petitioner is currently out on bond. Thus, the
grounds listed by Petitioner in his motion are facially
insufficient.
Reducing the claim to its true essence, the trial judge set a
bond on a defendant charged with murder, the judge learned that
circumstances were not as previously represented, the judge revoked
bond, and, upon motion of Petitioner, set a new higher bond. In a
nutshell, when new facts were revealed, the trial judge increased
the bond, the defense is unhappy with that ruling, and filed a
motion to disqualify the judge who set the higher bond.
WHEREFORE, based upon the above, Respondent submits that the
motion to disqualify in this case is legally insufficient and,
thus, the trial court properly denied the motion. The petition for
writ of prohibition should be denied.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
Response to Petition for Writ of Prohibition and Index to Appendix
has been furnished via delivery by U.S. Mail to counsel for
Petitioner,Mark OMara, Esquire, at OMara Law Group, 1416 East
Concord Street, Orlando, Florida 32803, and Donald R. West,
Esquire, at Donald West Law Group, P.A., 636 West Yale Street,
Orlando, Florida 32804; the Honorable Kenneth R. Lester, Jr.,
Circuit Judge, Seminole Criminal Justice Center, 101 BushBoulevard, Sanford, Florida 32773; and Bernie de la Rionda,
Assistant State Attorney, Office of the State Attorney, 220 East
Bay Street, Jacksonville, Florida 32203, this 23rd day of August,
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2012.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the size and style of type used in this
response is 12-point Courier New, in compliance with Fla. R. App.
P. 9.100(l).
Respectfully submitted,
PAMELA JO BONDIATTORNEY GENERAL
_________________________PAMELA J. KOLLERASSISTANT ATTORNEY GENERALFla. Bar. No. 0775990444 Seabreeze Blvd.5th FloorDaytona Beach, FL 32118(386) 238-4990Fax (386) [email protected]
COUNSEL FOR RESPONDENT