                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

ANTHONY R. BAKER JR.                    NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Petitioner,                       DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D17-1702

STATE OF FLORIDA,

     Respondent.
___________________________/

Opinion filed October 31, 2017.

Petition for Writ of Prohibition -- Original Jurisdiction.

Anthony R. Baker Jr., pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Amanda D. Stokes and Jennifer J. Moore,
Assistant Attorneys General, Tallahassee, for Respondent.




PER CURIAM.

      Petitioner Anthony Baker Jr. seeks a writ of prohibition disqualifying the lower

tribunal judge from a criminal matter in which Baker is proceeding pro se. For the

reasons explained below, we grant the petition, but instead of ordering the appointment

of a successor judge, we quash the order denying the motion for disqualification and

remand for the lower tribunal judge to consider the legal sufficiency of Baker’s
disqualification motion in the first instance.

      Baker filed a motion to disqualify the trial judge who is presiding over his

criminal case. It is unnecessary for purposes of this opinion to address the merits of

that motion, except to say that the motion was not properly served on the judge whom

Baker was seeking to disqualify. The judge entered an order denying the motion to

disqualify, which stated that the sole reason the motion was being denied was that it

was not properly served on the judge per Florida Rule of Judicial Administration

2.330(c)(4).    The order did not address the legal sufficiency of the motion to

disqualify.

      Petitioner filed a petition for writ of prohibition, arguing that the motion was

legally sufficient and should have been granted. The state filed a response asserting

that the motion was properly denied because it was not correctly served on the lower

tribunal judge. The proper remedy, the state suggests, is for petitioner to file a new

motion to disqualify with proper service. Both the petitioner and the state make

additional arguments relating to the merits of the motion to disqualify, which we do not

discuss here.

      The issue presented in this case is whether a motion to disqualify may be denied

solely upon the basis that it was improperly served when it is ultimately received by the

trial judge. Case law shows that improper service of a motion to disqualify nullifies

the portion of Florida Rule of Judicial Administration 2.330(j) that provides that such a


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motion is deemed granted if not ruled upon within 30 days. See, e.g., McCray v. State,

151 So. 3d 449 (Fla. 1st DCA 2014); Harrison v. Johnson, 934 So. 2d 563 (Fla. 1st

DCA 2006); Marquez v. State, 11 So. 3d 975 (Fla. 3d DCA 2009). There is no case

which holds, however, that improper service alone is a sufficient reason to deny a

motion once received.

       In Leila Corp. of St. Pete v. Ossi Consulting Engineers, Inc., the court noted that

“the lack of a certificate of service in and of itself is not fatal,” and held that the 30-day

time period began to run from the date the trial judge actually received the motion.

Leila Corp. of St. Pete v. Ossi Consulting Engineers, Inc., 144 So. 3d 644, 646-47 (Fla.

2d DCA 2014) (citing Overcash v. Overcash, 91 So. 3d 254, 255 (Fla. 5th DCA

2012)). In Overcash, the court wrote that “[s]ervice is the issue, not proof of service.”

Id. (citing Tobkin v. State, 889 So. 2d 120, 122 (Fla. 4th DCA 2004) (discussing

Florida Rule of Civil Procedure 1.080 in reference to rule 2.330(c) and noting that the

rule “requires service in a manner designed to notify the judge of the existence of the

motion”)).

       Here, it is clear that the judge received the motion because he ruled on it, and in

fact, he did so within 30 days. We conclude that improper service, where service

ultimately was effected on the trial judge, was not a sufficient reason for denial of the

motion, and that the trial judge was required to rule on the legal sufficiency of the

motion in his ruling. We therefore quash the order denying the motion to disqualify,


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and remand for the trial judge in this case to make a ruling on the legal sufficiency of

the motion to disqualify in the first instance. See generally Kelly v. Scussel, 167 So.

2d 870 (Fla. 1964). We note that this is a more appropriate remedy than the state’s

suggestion of requiring the petitioner to refile the motion to disqualify with proper

service, as this would require the petitioner to file a motion to disqualify that is

untimely per Florida Rule of Judicial Administration 2.330 and thereby deprive him of

a ruling on the legal sufficiency of the motion.

      PETITION GRANTED; ORDER QUASHED; REMANDED.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.




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