IN THE INTEREST OF A. S., JR., A CHILD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A juvenile appealed his adjudication for delinquency, challenging the trial judge's denial of a motion to disqualify based on alleged bias. The appellate court affirmed, holding that the appellant failed to comply with statutory procedures for mandatory disqualification and did not demonstrate an abuse of discretion in the judge's refusal to recuse himself.
The court held that because the motion for disqualification was not timely filed and was unaccompanied by supporting affidavits as required by statute, the appellant failed to invoke mandatory disqualification, leaving disqualification to the judge's discretion. The appellant did not demonstrate an abuse of that discretion, so the judgment was affirmed.
[1] A motion for disqualification of a judge is not timely filed if it is not filed within the statutorily prescribed period.
[2] A judge's decision on a motion for disqualification is reviewed for an abuse of discretion.
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“the seriousness of the alleged offense together with the representation by the court attorney that the proof is evident that said child committed the offense”
The statement in the detention order that prompted the disqualification motion; demonstrates the judge's potentially prejudicial comment
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Join FLexlaw to unlock all legal intelligenceOn April 25, 1972, a delinquency petition was filed against the appellant for assault with intent to commit first-degree murder. At a predetention hea…
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Appellant seeks review of an adjudication of delinquency.
On April 25, 1972, a petition for delinquency was filed against appellant alleging the commission of assault with intent to commit first degree murder. The juvenile denied the allegations. On the same day a predetention hearing was held before the Honorable Judge Ferguson who ordered the appellant detained pending a hearing on the delinquency petition because of “the seriousness of the alleged offense together with the representation by the court attorney that the proof is evident that said child committed the offense.” [Emphasis supplied] However, on May 2, 1972, after a rehearing, the judge ordered the juvenile released to the custody of his father. Defense counsel on May 11, 1972 filed a motion for disqualification, asking Judge Ferguson to recuse himself on the grounds that the court was no longer an impartial trier of fact due to the above quoted state*287ment recited in the detention order of April 25. The court denied the motion on May-15, 1972, at which time it proceeded to hear the petition for delinquency. The appellant was adjudicated delinquent, given a suspended commitment, and placed under the supervision of a youth counselor.
On appeal appellant is contending that as a result of the denial of the motion for disqualification, he was deprived of the presumption of innocence and a fair and impartial hearing as required by due process of law. We cannot agree.
The appellant did not elect'to follow the procedure of F.S. § 38.10, F.S.A.,1 providing for mandatory disqualification of a judge in that the motion was not timely filed and unaccompanied by any supporting affidavits. Oncay v. Oncay, Fla.App.1966, 183 So.2d 878. It is then left in the discretion of the judge as to whether or not he feels that he should disqualify himself. We have considered the record on appeal, briefs and arguments of counsel and have concluded that appellant has failed to show an abuse of this discretion. See Foley v. Peckham, Fla.App.1971, 256 So.2d 65; Wilson v. Renfroe, Fla.1957, 91 So.2d 857; State ex rel. Locke v. Sandler, 156 Fla. 136, 23 So.2d 276 (1945); Suarez v. State, 95 Fla. 42, 115 So. 519 (1938).
Accordingly, the judgment is hereby affirmed.
Affirmed.
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- Wilson v. Renfroe, 91 So. 2d 857 (Fla. 1956)
- State v. Honorable Harry N. Sandler, 156 Fla. 136 (Fla. 1945)
- Oncay v. Oncay, 183 So. 2d 878 (Fla. 3d DCA 1966)
- Foley v. Peckham, 256 So. 2d 65 (Fla. 3d DCA 1971)