EMILIO JESUS NUNEZ, PETITIONER,
v.
THE STATE OF FLORIDA AND THE HONORABLE HOWARD M. ZEIDWIG, CIRCUIT COURT JUDGE OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA, RESPONDENTS
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Nunez seeks certiorari review of an order denying his motion to disqualify Assistant State Attorney Chuck Morton. The court granted the petition, finding that Morton's exposure to covertly recorded confidential attorney-client communications about an insanity defense constituted actual prejudice requiring his disqualification.
The court held that Morton must be disqualified. The prosecutor suffered actual prejudice by hearing the privileged communications, observing the exchange between petitioner and counsel, and intending to use the videotape in prosecution. However, disqualification of the entire state attorney's office was not warranted by the record.
[1] A prosecutor's inadvertent overhearing of a defendant's confidential communication with counsel, coupled with an intent to use information gained from that communication,…
[2] Actual prejudice must be shown to disqualify a state attorney.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To disqualify a state attorney, petitioner must show actual prejudice.”
Establishes the legal standard for prosecutor disqualification derived from State v. Clausell
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Join FLexlaw to unlock all legal intelligenceWhile Nunez and his attorneys exchanged confidential communications via video linkup before a venue hearing, the court's video director covertly recor…
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DELL, Judge.
Petitioner seeks certiorari review or, in the alternative, mandamus review of the order denying reconsideration of the motion to disqualify either the Office of the State Attorney for the Seventeenth Judicial Circuit or Assistant State Attorney Chuck Morton. We treat the petition as one for writ of certiorari.
In Nunez v. Backman, 645 So. 2d 1063 (Fla. 4th DCA1994), the court granted a writ of prohibition and quashed the Honorable Paul L. Backman’s order denying a motion to recuse him from further participation in this case. This court’s opinion included the following facts:
On May 31, 1994, a motion for change of venue was pending before the trial court, and petitioner and his attorneys were to appear by video linkup. Prior to the hearing, while petitioner and his attorneys were exchanging confidential communications, the court’s director of video operations covertly recorded and broadcasted their private conversation into the courtroom. The trial judge was not present in the courtroom at the time. In a later hearing on a motion to disqualify the prosecutor, the director admitted that he suspected that the petitioner was pretending to be incompetent, that he had told the trial judge about the video tape, and that he may have suggested that the trial court review the tape....
Petitioner also alleges that Assistant State Attorney Chuck Morton was present in the courtroom and overheard the broadcast of the conversation that he had with his counsel at the Pompano Detention Facility. While the record is not clear as to the nature of the conversations between petitioner and his counsel, it does appear they discussed matters relating to an insanity defense. The prosecutor admits to inadvertently hearing the conversation between petitioner and his counsel, but contends that he is unaware of its substance. Witnesses who overheard the conversation testified that petitioner and his counsel were discussing petitioner’s insanity defense. The prosecutor made no attempt to leave the room once he noticed that the conversation was being broadcast.
Thus, the prosecutor did not voluntarily attempt to minimize the likelihood of prejudice by leaving the room.
Moreover, the prosecutor apparently intends to use the videotape of the covertly taped confidential communications to disprove petitioner’s proof of incompetence as demonstrated by a hypothetical question posed to petitioner’s expert witness at the competency hearing.
To disqualify a state attorney, petitioner must show actual prejudice. State v. Clausell, 474 So. 2d 1189 (Fla.1985) (approving Clausell v. State, 455 So. 2d 1050 (Fla. 3d DCA 1984)); Meggs v. McClure, 538 So. 2d 518 (Fla. 1st DCA 1989). Here, the prosecutor not only had the opportunity to hear the communications, he also observed the exchange between petitioner and his counsel and as stated above intends to use the videotape in the prosecution of the state’s ease. Under the circumstances of this case, petitioner has been irreparably harmed and has suffered actual prejudice. We therefore hold that the trial court departed from the essential requirements of the law when it denied the motion to disqualify the individual prosecutor.
However, the record does not support the motion for disqualification of the entire state attorney’s office.
Accordingly, we grant the petition for writ of certiorari and quash the order denying disqualification as it relates to the individual assistant state attorney. We deny certiorari as to disqualification of the entire state attorney’s office. We remand with directions to recuse the assistant state attorney from further participation in this case.
CERTIORARI GRANTED in part.
GLICKSTEIN and WARNER, JJ., concur.
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State v. Nolasco, 803 So. 2d 757 (Fla. 3d DCA 2001)….S. 945, 121 S.Ct. 1411, 149 L.Ed.2d 352 (March 26, 2001); Farina v. State, 679 So. 2d 1151 (Fla.1996), receded from on other grounds, Franqui v. State, 699 So. 2d 1312 (Fla.1997); State v. Clausell, 474 So. 2d 1189, 1191 (Fla.1985); Nunez v. State, 665 So. 2d 301 (Fla. 4th DCA 1995); Meggs v. McClure, 538 So. 2d 518 (Fla. 1st DCA 1989).1 The claim of prejudice in this case was that in the ex parte hearing, the defense gave the trial court a “road map” of its theory of mitigation in the penalty phase of the…
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State v. Martinez, 4 So. 3d 712 (Fla. 4th DCA 2009)…tion of disqualification of the individual prosecutors would not suffice because the recordings were heard by a number of attorneys and the contents were discussed throughout the State Attorney’s Office, distinguishing this case from Nunez v. State, 665 So. 2d 301 (Fla. 4th DCA 1995). Martinez moved to dismiss this petition, arguing that this court does not have jurisdiction based on Weir v. State, 591 So. 2d 593 (Fla.1991). We agree. In Weir, the Florida Supreme Court held that the State’s ability to seek c…1 / 2
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Pascucci v. Pascucci, 679 So. 2d 1311 (Fla. 4th DCA 1996)…g psychologist and it was former wife’s counsel who conferred with him. Former husband made no showing that Dr. Spero was entrusted with any of former husband’s confidences to which former wife’s counsel improperly gained access. Cf. Nunez v. State, 665 So. 2d 301 (Fla. 4th DCA 1995), review denied, 675 So. 2d 122 (Fla.1996); Henriquez v. Temple, 668 So. 2d 638 (Fla. 3d DCA 1996). Accordingly, we grant the petition for writ of certiorari1 and quash the order granting disqualification. DELL and WARNER, JJ.,…
Authorities Cited
- State v. Clausell, 474 So. 2d 1189 (Fla. 1985)
- Honorable William Meggs v. The Honorable Charles McCLURE, 538 So. 2d 518 (Fla. 1st DCA 1989)
- Clausell v. State, 455 So. 2d 1050 (Fla. 3d DCA 1984)
- Berger v. Balcor Payroll Co., Inc., 645 So. 2d 1063 (Fla. 3d DCA 1994)