Recusal Denial Error Draws New Trial

The Florida Supreme Court has granted a new trial to a defendant convicted of two counts of second degree murder and a count of attempted first degree murder while under the influence of marijuana.

The issue related to the judge who took over the case, who had previously served as a homicide prosecutor in the same working group as the prosecutor here

In his supporting affidavit, Davis listed four reasons he feared he would not receive a fair trial:

(1) Judge Harb was an assistant state attorney in the homicide division while this case was pending and worked alongside the prosecutor in that division handling his case,
(2) [T]he homicide division functioned as a single unit with decisions being made not by individual prosecutors but rather by committee as a unified division,
-(3) [T]he State’s argument in opposition to his motion for Judge Jacobsen to remain on the case was both strenuous and based on factual research about Judge Harb that the judge could not consider in ruling on a motion to disqualify, and
(4) Judge Harb was present at the hearing on the motion for Judge Jacobsen to remain on the case. Davis, 311 So. 3d at 931.

Judge Harb denied the motion as legally insufficient.

Error not harmless

We answer the certified question in the affirmative. We approve in part, finding that the Second District was correct to apply the harmless error standard. However, the proper test for harmless error is that set forth in State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Under that standard, we conclude harmful error occurred. We quash the decision of the Second District to the extent that it concludes that there was no harmful error in this case, and remand for a new trial.

Justice Polston

I agree that the motion to disqualify the trial judge should have been granted, and I also agree with the majority to the extent that it quashes in part the decision below and remands for a new trial. However, I dissent to the majority’s use of the harmless error standard because this cannot be reconciled with our established precedent treating the erroneous denial of a motion to disqualify the trial judge as per se reversible.

Justice Labarga

I agree with the majority that the motion to disqualify the trial court judge should have been granted. Thus, I agree with the majority to the extent that it quashes in part the decision below and remands for a new trial.

However, because I believe that the erroneous denial of a disqualification motion is per se reversible, I dissent to the majority’s use of the harmless error standard of review.

(Mike Frisch)