Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

When a motion to disqualify a judge is filed, the judge reviews the motion and has a deadline by which to rule on the motion before it is automatically granted. If the judge issues a timely order on the motion, the order must meet certain requirements set forth in rules of procedure. This was an issue in the case Jada v. Harrison, 5D23-535 (Fla. 5th DCA August 11, 2023).

The petitioner in this case filed a writ of prohibition following the denial of his second motion to disqualify the trial judge. The petitioner based the second motion to disqualify on the judge’s commenting on the allegations of bias contained within the first motion to disqualify.

The appellate court noted “Florida Rule of General Practice and Judicial Administration 2.330(h) clearly informs a trial judge against whom an initial motion to disqualify is filed that he ‘may determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.’ The same rule further explains that ‘[n]o other reason for denial shall be stated, and an order of denial shall not take issue with the motion.’ Fla. R. Gen. Prac. & Jud. Admin. 2.330(h).

The court concluded “Here, the court’s order denying the first motion went beyond merely determining the legal sufficiency of the motion or explaining ‘the status of the record,’ and instead ‘took issue with the motion.’ Fla. R. Gen. Prac. & Jud. Admin. 2.330(h). Thus, the trial court’s order on the first motion violated rule 2.330(h) and created an independent basis for disqualification. Accordingly, we grant the petition for writ of prohibition.”

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