Florida/Georgia Personal Injury & Workers Compensation

...State, 717 So.2d 477 (Fla.1998); State v. Lewis, 656 So.2d 1248 (Fla.1994). Florida Rule of Judicial Administration 2.160(d)(2) requires a trial judge to disqualify himself if the judge is a "material witness for or against one of the parties to the cause." See also § 38.02, Fla....

...A material witness is one "who gives testimony going to some fact affecting the merits of the cause and about which no other witness might testify." Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934) (defining "material witness" as contemplated by chapter 16053, Laws of Florida (1933), the predecessor to section 38.02); see also Van Fripp v....

...ct affecting the merits" of Rodriguez's public records claim. His testimony was strictly informational and was elicited in an attempt to locate the missing documents. Thus, Judge Carney was not a material witness as contemplated by rule 2.160(d)(2), section 38.02, and Canon 3(E)(1)(b), and the motion to disqualify was properly denied....

...ements. As the State points out, Rule of Judicial Administration 2.160(e) requires that a motion to disqualify be filed "within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion." Similarly, section 38.02, Florida Statutes (1999), provides that motions to disqualify must be filed within thirty days after the party learns of the grounds for disqualification....

...State, 439 So.2d 840 (Fla.1983) (affirming conviction for first-degree murder, finding claims of guilt phase error to be "meritless," and finding no merit to claims that trial court incorrectly found certain aggravating factors and failed to find certain mitigating circumstances). [10] Section 38.02, Florida Statutes (1979), provides that a suggestion of disqualification must be filed within thirty days after the party or attorney learns of the ground for disqualification or the ground is considered waived....

...Fort Lauderdale Sun Sentinel as saying that he believed Rivera had committed many crimes in the past and society should not let him "visit this conduct on anyone else." A motion for disqualification may be filed at "any time before final judgment." § 38.02, Fla....

...s procedural...."). Pursuant to Rule of Judicial Administration 2.160(e), a motion for recusal must be filed "within a reasonable time not to exceed 10 days after discovery *1193 of the facts constituting the grounds for the motion." [14] Similarly, section 38.02, Florida Statutes (1999), dictates that a motion to disqualify must be filed within thirty days after the party learns of the grounds for disqualification....

...a Rule of Judicial Administration 2.160, effective January 1, 1993). Both rules, however, contain the same 10 day time limitation on a motion for recusal. [15] This statute seems to apply to judges hearing cases in "any of the courts of this state," § 38.02, Fla....

...Moreover, a motion for disqualification must be filed within thirty days after the movant learned of the alleged grounds for disqualification, "otherwise the ground, or grounds, of disqualification shall be taken and considered as waived." Rivera v. State, 717 So.2d 477, 481 n. 3 (Fla.1998) (quoting § 38.02, Fla....

g., Utah Code Ann. § 63M-1-2505.5; Va.Code Ann. § 38.2-3430.1:1; see also Ariz. Const. Art. XXVII, § 2

...it judge. BOYD, J., and MELVIN, Associate Justice, concur. ON REQUEST FOR DISQUALIFICATION PER CURIAM. Petitioners have requested the disqualification of Justice Overton from participation in the decision on rehearing in this case, based on sections 38.02 and 38.10, Florida Statutes (1977), and Canon 3C(1) of Florida's Code of Judicial Conduct....

...1975); Department of Revenue v. Leadership Housing, Inc., 322 So.2d 7 (Fla. 1975), cert. denied, 434 U.S. 805, 98 S.Ct. 35, 54 L.Ed.2d 63 (1977). Without expressing any opinion as to the overall legal sufficiency of the petitioners' request, their reliance on sections 38.02 and 38.10 is misplaced....

...Petitioners' request for disqualification will be submitted to Justice Overton for his decision. ENGLAND, C.J., ADKINS, BOYD, SUNDBERG and McDONALD, JJ. and MELVIN, Associate Justice, concur. OVERTON, J., not participating in per curiam. DENIAL OF REQUEST FOR RECUSAL OVERTON, Justice. Pursuant to sections 38.02 and 38.10, Florida Statutes (1977), and the Code of Judicial Conduct, Canon 3(C)(1), petitioners filed a suggestion that I disqualify myself or be disqualified from this cause on the grounds of my close friendship with a lawyer whose law firm h...

...lined to recuse themselves in the cause and participated on the merits. See Ervin v. Collins, 85 So.2d 852 (Fla. 1956). Upon my submission of this matter, the Court receded from the procedure of Ball *1218 and Ervin and expressly found that sections 38.02 and 38.10, Florida Statutes (1977), were not applicable to appellate judges or justices....

...s decision); State v. Cline, 69 N.M. 305, 366 P.2d 441 (1961) (affidavit of disqualification was not timely filed when made after the district judge had judicially rejected requests made by a defendant in a criminal case). In our own state, sections 38.02 and 38.10, Florida Statutes (1977), pertaining to the disqualification of trial judges, codify this general rule of law. Section 38.02 requires that a suggestion for disqualification must be filed not more than thirty days after the plaintiff's attorney has learned of such grounds of disqualification....

...ot be raised in a postconviction appeal. See Asay v. State, 769 So.2d 974, 979 (Fla. 2000); Rivera v. State, 717 So.2d 477, 481 n. 3 (Fla.1998); Stano v. State, 520 So.2d 278, 281 (Fla.1988); Zeigler v. State, 452 So.2d 537, 539 (Fla.1984); see also § 38.02, Fla....

...2428, 153 L.Ed.2d 556 (2002); and (6) cumulative errors deprived Grim of a fundamentally fair trial. [5] Despite the revocation of his license in Missouri, at the time of trial Berkland was licensed to perform autopsies in Florida. [6] The State argues this claim is waived. See § 38.02, Fla....

...Actually, the report was couched in language directed to the preservation of the integrity of the judicial system with the objective of preventing embarrassment to the courts. This grand jury report did little more than the Legislature itself has done by the enactment of Section 38.02, Florida Statutes, F.S.A....

...We have no way of knowing if this contention is true, because the trial court below conducted no evidentiary hearing. If the information regarding the judge's potential conflict was reasonably available and Steinhorst did not move to recuse the judge, then the right to recuse the judge was waived. See § 38.02, Fla....

...were to admit that he did not "stand fair and impartial between the parties." The district court of appeal reasoned that the second disqualification provision of section 38.10 only became applicable when there had been a prior disqualification under section 38.02, Florida Statutes (1989), and that neither of Judge Cooksey's disqualifications had taken place under section *255 38.02....

...[3] The court held that the allegations of Stocks' motions were legally sufficient under the first portion of section 38.10 and issued writs of prohibition, thereby disqualifying Judge Rudd from further participation in both suits. There are two statutes which authorize a party to seek to disqualify a judge. Section 38.02 states that a party may show by a suggestion that the judge or the judge's relative is a party or is interested in the result of the case, that the judge is related to one of the attorneys, or that the judge is a material witness....

...the procedural aspects of disqualification. The issue which prompted the district court of appeal to certify these cases is whether the latter portion of section 38.10 relating to a second disqualification refers to a previous disqualification under section 38.02 or to a previous disqualification under section 38.10....

...The court below first pointed to the latter portion of section 38.10 which refers to a situation in which a party once before "has suggested the disqualification of a trial judge." The court reasoned that this must refer to a previous *256 disqualification under section 38.02 which expressly provides for a suggestion of disqualification rather than the first portion of section 38.10 which does not contain the word "suggestion." With all due respect, we cannot accept this analysis....

...hich calls for the judge's disqualification whenever a party "makes and files an affidavit stating that he fears he will not receive a fair trial." In any event, the legislature could not have intended the latter portion of section 38.10 to refer to section 38.02 because section 38.02 did not become law until ten years after section 38.10 was enacted....

...[4] Thus, we hold that when the latter portion of section 38.10 refers to a prior disqualification, it refers to a disqualification accomplished pursuant to the first portion of section 38.10. As a necessary corollary, this means that disqualifications under section 38.02 are irrelevant to section 38.10 and that a subsequent disqualification under section 38.02 shall be treated in the same manner as an initial disqualification under that statute....

...her case had been previously disqualified on his suggestion pursuant to the first portion of section 38.10. The record supports this contention. In suit I, Stocks originally moved to disqualify Judge Cooksey, invoking the provisions of both sections 38.02 and 38.10, [6] but this motion had been denied....

...[2] Brown and Stocks are engaged in other related lawsuits that are not the subject of these petitions. [3] The record contains nothing to indicate why other second circuit judges may have disqualified themselves. [4] Section 38.10 was originally enacted in this form as section 1, chapter 9276, Laws of Florida (1923), and section 38.02 was originally enacted as section 3, chapter 16053, Laws of Florida (1933). [5] Because section 38.10 is vulnerable to the possibility of judge-shopping, it was logical for the legislature to make it more difficult to effect a second disqualification under that statute. However, because the grounds specified under section 38.02 so clearly justify disqualification and because the truth of the movant's allegations can be tested, there was little reason to make it harder to disqualify a second judge under section 38.02....

...Commissioner who had aided in the preparation of a grand jury list "switch hats" and rule on the constitutionality of that selection process as a jurist. [4] It was not based upon any grounds for disqualification of judges as set forth in Section F.S. 38.02, F.S.A....

official business by any agency," see R.I. Gen. Laws § 38-2-2; TEXAS includes "information that is collected

...Stein argues on appeal that Judge Wiggins was a material witness to the claim that Judge Wiggins may have delegated his authority in drafting the sentencing order to the State because of the presence of the unsigned sentencing order in the State's file. A motion to disqualify is governed substantively by section 38.02, Florida Statutes (2002), which provides in relevant part: In any cause in any of the courts of this state any party to said cause ......

...It appears from the record that plaintiff's attorney learned of such grounds of disqualification, as were asserted, on May 2, 1975. The motion in question was filed more than thirty days thereafter. This lack of timeliness constitutes a waiver. Fla. Stat. § 38.02 (1973); See 18A Fla.Jur., Judges, §§ 54 and 62 (1971)....

...It appears from the record that plaintiff's attorney learned of such grounds of disqualification, as were asserted, on May 2, 1975. The motion in question was filed more than thirty days thereafter. This lack of timeliness constitutes a waiver. Fla. Stat. § 38.02 (1973); See 18A Fla.Jur., Judges, §§ 54 and 62, (1971)." Appellants correctly point out our error, which we here acknowledge. Instead of relying on Fla. Stat. 38.02 with the thirty day time limit as we supposed, appellants relied upon Fla....

...ed with violating his previous probation order of March 31, 1966, by having committed the Pinellas Park offense, of which he had been acquitted. On May 16, 1967, the Public Defender's office on behalf of Hooks filed suggestion, pursuant to F.S. Sec. 38.02 F.S.A., that Judge McNulty "should be disqualified" as Judge at the revocation hearing because he was "necessarily a material witness", and this was followed up by a witness subpoena summonsing the Judge to appear at the hearing on June 1, 1967....

...cedural aspects, viz: (1) error in the Judge refusing to disqualify himself, and (2) failure to accord the probationer the full revocation hearing to which he was entitled. We will take these up in order. (1) Disqualification of the Judge. F.S. Sec. 38.02, F.S.A....

...Counsel for Hooks had stated in writing that the Judge would be a material witness at the revocation hearing. It was not then the province of the Judge to determine the truth or falsity of that statement. When that statement was made as a ground for disqualification, the Judge thereupon, ipso facto, by operation of F.S. Sec. 38.02, F.S.A., became legally disqualified....

...tness at the revocation hearing. It was not then the province of the Judge to determine the truth or falsity of that statement. When that statement was made as a ground for disqualification, the Judge thereupon, ipso facto, by operation of F.S. Sec. 38.02 F.S.A., became legally disqualified * * *"....

...suggestion, as reflected in our full opinion. As we said in Booth v. Mary Carter Paint Company, Fla.App. 1966, 182 So.2d 292, "general statements of law in an opinion must be given such weight only as the facts in that particular case warrant". F.S. Section 38.02, F.S.A....

...ied it. The ground for disqualification was that the Judge was "necessarily a material witness" at the revocation proceeding, and this was followed by issuance of witness subpoena for the Judge. The language of the suggestion follows the language of Section 38.02, which provides, as a ground for disqualification, that "said judge is a material witness for or against one of the parties" to the cause....

...Cowser, A.B. Pate, James H. Bush and H.H. Surber. Counsel for appellant contend in their brief and during oral argument heard at the bar of this Court that Judge H. Clay Lewis as a matter of law, was disqualified to make and enter the orders supra. Sections 38.02 and 38.05, F.S.A., and authorities from other jurisdictions are cited to sustain their position. Pertinent provisions of Section 38.02, supra, are viz.: In any cause in any court of this State * * * any person interested in the litigation, prior to the entry of a judgment or final decree, may show by suggestion filed in the cause that the Judge before whom the cause is...

...Other pertinent Sections of Florida Statutes Annotated 1941, F.S.A., are viz.: "38.03. Waiver of grounds of disqualification by parties. The parties to any cause, or their attorneys of record, may, by written stipulation filed in the cause, waive any of the grounds of disqualification named in § 38.02 and such waiver shall be valid and binding as to orders previously entered as well as to future acts of the judge therein; provided, however, that nothing herein shall prevent a judge from disqualifying himself of his own motion under § 38.05. "38.04. Sworn statement by judge holding himself qualified. Whenever any judge shall enter an order under § 38.02 declaring himself qualified to act in said cause, he shall contemporaneously therewith file therein a sworn statement that to the best of his knowledge and belief the ground or grounds of the disqualification named in the suggestion do not exist. "38.05. Disqualification of judge on own motion. Any judge may of his own motion disqualify himself where, to his own knowledge, any of the grounds for a suggestion of disqualification, as named in § 38.02, exist....

...The failure of a judge to so disqualify himself under this section shall not be assignable as error or subject to review by the supreme court. "38.06. Effect of acts where judge fails to disqualify himself. In any cause where the grounds for a suggestion of disqualification, as set forth in § 38.02, appear of record in the cause, but no suggestion of disqualification is filed therein, the orders, judgments and decrees entered therein by the judge shall be valid....

...e disqualification of a trial judge" and another judge has been assigned, the different standard shall apply in reviewing the motion for disqualification. This, petitioner argues, applies only where the previous disqualification was made pursuant to section 38.02, Florida Statutes, which expressly provides for a suggestion of disqualification on grounds that the judge is related to a party or attorney or is a potential witness in the cause....

...d inflammatory argument of the State Attorney deprived appellant of an impartial trial; (5) the evidence adduced was insufficient to support the verdict; (6) alleged statements in the dying declaration were prejudicial. Pursuant to the provisions of Section 38.02, F.S.A., on the 12th day of January, 1949, within the thirty day period, the defendant through counsel filed a suggestion of disqualification of the Trial Judge as Judge in said cause, to wit: Honorable Bryan Simpson....

...e third degree to attorney John A. Rush and the latter being a witness against the defendant, the trial Judge, because of this factual situation, became interested in the prosecution of the cause in the lower court and came within the inhibitions of Section 38.02, F.S.A.; (4) that John A....

...file a sworn statement as to his qualification to sit in the cause until February 8, 1949, some time after the rendition of the verdict which is dated January 22, 1949. Section 38.04, F.S.A., provides: "Whenever any judge shall enter an order under § 38.02 declaring himself qualified to act in said cause, he shall contemporaneously therewith file therein a sworn statement that to the best of his knowledge and belief the ground or grounds of the disqualification named in the suggestion do not e...

...Morley testified, giving her account of events. The judge accepted the factual allegations as true, but ruled the motion legally insufficient. Denise eventually testified against Hendrix in the present trial. Hendrix claims that the judge erred in refusing to recuse himself in violation of section 38.02, Florida Statutes (1989), [4] and Canon 3(C) of the Florida Code of Judicial Conduct....

...The aggravating factor of heinous, atrocious, or cruel is unconstitutionally vague. The State raises a single issue on cross-appeal: The trial court erred in refusing to allow the State to present as an aggravating factor the fact that Hendrix had a prior conviction for a violent felony as a juvenile. [4] Section 38.02, Florida Statutes (1989) provides in relevant part: 38.02 Suggestion of disqualification; grounds; proceedings on suggestion and effect....

...Having made this first determination, the trial judge must then determine whether the justice of this cause allows for relief from the judgment. In the present case, if such relief is granted, of course, a new trial must then ensue. Appellee urges that Fla. Stat. § 38.02 provides the exclusive remedy for the disqualification of a judge....

...tc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect ..." [6] "38.02 Suggestion of disqualification; grounds; proceedings on suggestion and effect "In any cause in any of the courts of this state any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at any...

...the affidavit of the respondent with respect to the suggestion of disqualification because he was interested in the subject matter; that no opportunity was afforded the relator by the respondent for the filing of additional affidavits as provided by Section 38.02, Florida Statutes, F.S.A.; that after announcing his denial of relator's suggestion for disqualification and the filing of the said affidavit, the respondent announced that the criminal case pending against the relator in Volusia County would be tried on February 9, 1959....

...f marriage. See Bergh v. Bergh, Fla.App. 1961, 127 So.2d 481; and Banfi v. Banfi, Fla.App. 1960, 123 So.2d 52. It was not error for the trial judge to deny the motion for his disqualification. The former wife relied upon the provisions of Fla. Stat. § 38.02, which is, in pertinent part: "In any cause in any of the courts of this state any party to said cause ....

...mother is vindictive and has greatly harmed the children. On the disqualification point we hold that a suggestion for disqualification must be presented to the trial court by a timely motion which is supported by a legally sufficient affidavit. See § 38.02, Fla....

...It affirmatively appears that the relator has not followed the statutory procedure for disqualification, which is prescribed in Chapter 38, Florida Statutes, F.S.A. One of the grounds for disqualification asserted by relator appears to come within the purview of Section 38.02, Florida Statutes, F.S.A., and the other ground under Section 38.10, Florida Statutes, F.S.A....

...Although the majority recognized that due process concerns existed, it concluded that it could address these concerns only under certain limited circumstances. According to the majority, the due process violation could be addressed only if Steinhorst did not waive his claim pursuant to section 38.02, Florida Statutes (1991) [8] and rule 3.850. Steinhorst, 636 So.2d at 500-01. *1250 The trial court, on remand, determined that Steinhorst waived his right to recuse Judge Turner. With regard to section 38.02, the trial court concluded Steinhorst waived his claim because the information concerning the conflict was reasonably available prior to the date Steinhorst filed his notice of appeal....

...ght under rule 3.850 alleging newly discovered evidence. Steinhorst v. State, 636 So.2d 498 (Fla.1994). [7] The events leading to the murders began at a site called Sandy Creek. [8] Even if Steinhorst could have waived his claim, I do not think that section 38.02 alone could have served as a basis for that waiver. In my opinion, section 38.02 merely provides that, prior to final judgment, if a defendant does not file a suggestion for disqualification within 30 days of learning of the particular basis for disqualification then the defendant waives the right to raise that basis....

...ilable and the defendant fails to file, within 30 days of when that information became reasonably available, a suggestion explaining the basis for disqualification. I recognize however that section 38.06, Florida Statutes (1991), in conjunction with section 38.02 could provide a basis for waiver if waiver was possible in this case. Section 38.06 provides that where grounds for disqualification as set forth in 38.02 appear of record in the cause, but no suggestion of disqualification is timely filed, the order entered by a judge shall be valid....

...s shown. See Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986). Regardless of how these statutes are interpreted, they cannot supersede a provision of the Constitution. [9] Again, I note that I believe it is actually section 38.06, in conjunction with 38.02, that the trial court should have identified as a basis for waiver....

ECF No. [135], the notification provision at section 38.2 of the OSA conceivably applies to the Sacks

members of the unorganized militia. Cf. Ga.Code Ann. § 38-2-277(a) (1995) (prohibiting any “body of men other

Speidel, and Stipanowich, 4 Federal Arbitration Law § 38.2.2.2 (1994) ("The common law method of enforcement

26-2-105(b); Tex. Prop.Code § 42.0021(a); Va.Code Ann. § 38.2-5604(B). 6 . In Bonner v

...the parties to the cause. Fla. R. Jud. Admin. 2.330(d)(2) (emphasis added). Clearly, Judge Lewis is related to Mr. Lewis by consanguinity within the third degree, and arguably Mr. Lewis is interested in the result. Petitioners also make reference to section 38.02, Florida Statutes, and Florida Code of Judicial Conduct Canon 3E. Section 38.02, Florida Statutes (2006) (emphasis added), provides in part as follows: In any cause in any of the courts of this state any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at an...

(Fla. 4th DCA 1975) (motion untimely under section 38.02, Florida Statutes, because it was “filed more

...quiring his disqualification under Florida Rule of Judicial Administration 2.330(d)(2) (requiring the motion to show "that the judge before whom the case is pending ... is a material witness for or against one of the parties to the cause"). See also § 38.02, Fla....

...See Cave v. State, 660 So.2d 705, 707 (Fla.1995); MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334 (Fla.1990); Livingston v. State, 441 So.2d 1083, 1086-87 (Fla.1983). In Douglass v. Douglas, 633 So.2d 1166 (Fla. 1st DCA 1994), we stated: Section 38.02 contemplates that the judge will determine the truth of the suggestion to disqualify....

allege grounds for disqualification contained in section 38.02, Fla.Stat., F.S.A. Since the defendant did not

recusal in the trial court was untimely filed. See § 38.02, Fla. Stat. (1999); Fla. R. Jud. Admin. 2.160(e);

situation is one for his disqualification. See § 38.02, Fla.Stat., F.S.A. However, in order that this

second ground for disqualification was based on section 38.02 which allows for disqualification of a judge

following provision in its exclusivity clause, § 38.2-5002: D. Notwithstanding anything to the contrary

of the individual judges of this Court under section 38.02, Fla.Stat., F.S.A., and as a motion to transfer

in all activities of daily living. Va.Code Ann. § 38.2-5001 (Michie 2003) (emphasis added). [5] Appellees

apply to general and special masters.” Under F.S. 38.02, F.S.A., a circuit judge is obliged to declare

thereof, on account of “interest” under Fla.Stat. § 38.02, F.S.A., unless on grounds other than the mere

solely on the ground of interest under F.S.A. § 38.02. That section-requires only a written suggestion

grounds and procedures for disqualifying a judge. Section 38.02, F.S., states that: In any cause in any

currently assigned judge would be a violation of F.S. § 38.02. Judge Gary granted the motions without explanation

Florida Supreme Court looked in Steinhorst, see § 38.02, Florida Statutes (2015) (providing a thirty-day

disqualification pursuant to Florida Statutes § 38.02, F.S.A., alleging that the judge would be a material

only the first is arguably cognizable under section 38.02, while the other three obviously concern possible

, Utah Code Ann. § 63M-1-2505.5; Va. Code Ann. § 38.2-3430.1:1; see also ARIZ. CONST . Art. XXVII, §

AND REMANDED. KLEIN and GROSS, JJ., concur. . Section 38.2-2206, Code of Virginia Annotated, provides:

party of record he must disqualify himself. F.S.A. § 38.02 provides that a party may file a suggestion of

(Fla. 4th DCA 1975) (motion untimely under section 38.02, Florida Statutes, because it was “filed more