          Supreme Court of Florida
                                  ____________

                                  No. SC17-896
                                  ____________

                               GROVER B. REED,
                                  Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                November 15, 2018

PER CURIAM.

      We have for review Grover B. Reed’s appeal of the postconviction court’s

order denying Reed’s motion filed pursuant to Florida Rule of Criminal Procedure

3.851.1 Because we conclude that the judge who heard this motion should have

recused herself, we reverse the postconviction court’s order and remand for a

different trial judge to consider Reed’s postconviction motion.




      1. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const. To the
extent that Reed alternatively filed his motion pursuant to Florida Rule of Criminal
Procedure 3.800(a), Reed’s filings in this Court state that Reed is appealing the
denial of his rule 3.851 motion and raise no argument pursuant to rule 3.800(a).
                          FACTS AND BACKGROUND

      Reed was sentenced to death following a jury’s recommendation for death

by a vote of eleven to one. Reed v. State, 560 So. 2d 203, 204 (Fla. 1990). His

sentence of death became final in 1990. Reed v. Florida, 498 U.S. 882 (1990). In

the nearly thirty years since, Reed has engaged in extensive postconviction

litigation in both state and federal courts but has not received any relief from his

convictions or death sentence. See Reed v. State, 116 So. 3d 260, 262-63 (Fla.

2013) (explaining procedural history).

      On January 12, 2017, Reed filed the successive postconviction motion at

issue in this case seeking relief pursuant to the United States Supreme Court’s

decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on remand in

Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161

(2017). The postconviction court, specifically Judge Linda McCallum, summarily

denied Reed’s motion.

      After receiving Judge McCallum’s order denying his motion, Reed filed a

motion to disqualify Judge McCallum. 2 Reed’s motion stated in pertinent part:

            Judge McCallum was employed by the Duval County State
      Attorney’s Office from 1986 until her appointment as a county judge
      in 1994. During her tenure with the State Attorney’s Office, Judge

       2. Reed’s Initial Brief to this Court explains that Judge Mahon “was still
presiding” over Reed’s case when he filed the postconviction motion at issue in
this case, and “[t]here was no notice of a judicial reassignment.” Initial Br. of
Appellant, at 2.

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      McCallum handled capital prosecutions and was part of the team of
      capital attorneys. In at least one case during that time, she represented
      the State at a capital trial and penalty phase that resulted in a death
      sentence. Thomas Moore, the defendant in that case, is currently still
      on death row.
             Mr. Reed was tried and convicted in late 1986. A death
      sentence was imposed in January of 1987. Postconviction
      proceedings involving capital prosecutors from the State Attorney’s
      Office were ongoing in the early 1990’s. Throughout this time period
      Judge McCallum was employed by the State Attorney’s Office,
      handling capital prosecutions, and working with the attorneys who
      prosecuted Mr. Reed and represented the State in collateral
      proceedings. As part of the capital team during her tenure with the
      State Attorney’s Office, each capital prosecutor including Judge
      McCallum had input in the decision making in each other’s cases.
             . . . While Mr. Reed’s [successive postconviction] motion
      sought specifically to vacate his death sentence, a finding that he was
      entitled to collateral relief would mean that in the capital cases that
      Judge McCallum prosecuted between 1986 and 1994 that resulted in
      the imposition of a death sentence, relief would likely have to also be
      granted. A ruling in Mr. Reed’s case would impact the death
      sentences that Judge McCallum successfully sought and which have
      yet to be carried out. As a result, Judge McCallum’s ruling on Mr.
      Reed’s motion would impact the death sentences that she was
      successful in obtaining and which are still intact and have yet to be
      carried out.

(Emphasis added.)

      On March 22, 2017, Judge McCallum denied Reed’s motion to disqualify as

legally insufficient. Acknowledging Reed’s allegation that she “was an Assistant

State Attorney working on capital cases at the time of his postconviction

proceedings,” Judge McCallum concluded that Reed’s allegations were

“speculative” and “cursory” and neither “allege[d] any specific instances of




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prejudice or bias of the Court” nor “an objectively reasonable fear that he will not

receive a fair hearing.”

      Reed appealed to this Court. This Court stayed Reed’s appeal pending the

disposition of Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct.

513 (2017). After this Court decided Hitchcock, Reed responded to this Court’s

order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Reed’s response to the order to show cause, we directed briefing

on Reed’s non-Hurst related claims.

      In the briefs filed in response to this Court’s order, Reed argued that:

(1) Judge McCallum erred in denying his motion to disqualify; (2) he is entitled to

reevaluation of his prior postconviction claims in light of Hurst and its progeny;

and (3) his death sentence violates the Eighth Amendment to the United States

Constitution under the United States Supreme Court’s decision in Johnson v.

Mississippi, 486 U.S. 578, 590 (1988). Because we grant relief on Reed’s first

claim, we decline to address Reed’s second and third claims.

                                    ANALYSIS

      At the outset, the State argues that Reed’s motion to disqualify was

untimely. Because the postconviction court denied Reed’s claim to Hurst relief

without holding a Huff3 hearing, Reed alleged that he learned that his case had


      3. Huff v. State, 622 So. 2d 982 (Fla. 1993).

                                         -4-
been reassigned to Judge McCallum only after he received the denial order on

March 6, 2017. Reed’s motion to disqualify was filed within ten days of that date,

on March 15, 2017. Thus, Reed complied with Florida Rule of Judicial

Administration 2.330(e), requiring that “[a] motion to disqualify shall be filed

within a reasonable time not to exceed 10 days after discovery of the facts

constituting the grounds for the motion and shall be promptly presented to the

court for an immediate ruling.”

      On the merits, we review the postconviction court’s denial of Reed’s motion

to disqualify de novo. See Barnhill v. State, 834 So. 2d 836, 842-43 (Fla. 2002). 4

This Court has stated that “[t]he question of disqualification focuses on those

matters from which a litigant may reasonably question a judge’s impartiality rather

than the judge’s perception of his ability to act fairly and impartially.” Livingston

v. State, 441 So. 2d 1083, 1086 (Fla. 1983). In reviewing a motion to disqualify,

“the judge shall determine only the legal sufficiency of the motion and shall not

pass on the truth of the facts alleged.” Cave v. State, 660 So. 2d 705, 707-08 (Fla.

1995); see Fla. R. Crim. P. 3.231. In “determining whether a motion is legally

sufficient,” courts must review “whether the facts alleged would place a reasonably

prudent person in fear of not receiving a fair and impartial trial.” Barnhill, 834 So.


      4. To the extent Reed argues that the postconviction court erred by not
holding a case management conference or Huff hearing, we deny this claim. See
Marek v. State, 14 So. 3d 985, 999-1000 (Fla. 2009).

                                         -5-
2d at 843 (quoting MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332,

1335 (Fla. 1990)); see Wall v. State, 238 So. 3d 127, 142-43 (Fla.), cert. denied,

No. 18-5442 (U.S. Oct. 9, 2018).

      Reed relies on Williams v. Pennsylvania, 136 S. Ct. 1899 (2016), where the

United States Supreme Court explained that a judge may violate a defendant’s

rights under the Due Process Clause of the Fourteenth Amendment if he or she

formerly served as a prosecutor and, in doing so, played a critical role in the

defendant’s prosecution. Id. at 1906. Although we do not agree that Williams

requires recusal, we nevertheless determine that the allegations in the motion to

disqualify were sufficient to warrant recusal under this Court’s standard—“whether

the facts alleged would place a reasonably prudent person in fear of not receiving a

fair and impartial trial.” Barnhill, 834 So. 2d at 843.

      While Judge McCallum was not the assigned prosecutor on Reed’s case, she

was actively prosecuting capital cases during the time period when Reed’s

prosecution was ongoing. It was alleged that she was a part of the team of capital

prosecutors and that, “as part of the capital team during her tenure with the State

Attorney’s Office, each capital prosecutor including Judge McCallum had input in

the decision making in each other’s cases.” Considering the unique aspects of

death penalty cases, including the very decision to seek the death penalty, we

conclude that, in these narrow circumstances, Reed’s motion was legally sufficient


                                         -6-
to require Judge McCallum to recuse herself from Reed’s case. See id. Thus,

Judge McCallum should have granted Reed’s motion to disqualify and should not

preside over further proceedings pertaining to Reed’s case, should there be future

proceedings.

                                   CONCLUSION

      For the reasons explained above, we reverse the postconviction court’s order

denying Reed’s motion to disqualify and remand for reassignment to another judge

for evaluation of Reed’s claims.

      It is so ordered.

PARIENTE, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.
CANADY, C.J., specially concurs with an opinion.
LEWIS, J., concurs in result.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A
REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.

CANADY, C.J., specially concurring.

      I concur with the majority’s decision except that I would not rely on “the

unique aspects of death penalty cases.” Majority op. at 6.

An Appeal from the Circuit Court in and for Duval County,
     Linda McCallum, Judge - Case No. 161986CF006123AXXXMA

Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida,


                                       -7-
      for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




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