         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1511
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STATE OF FLORIDA,

    Petitioner,

    v.

RACHEL LYNN SCHARLEPP,

    Respondent.
                  _____________________________


Petition for Writ of Prohibition—Original Jurisdiction.


                        October 31, 2018


PER CURIAM.

     The state seeks a writ of prohibition disqualifying the trial
judge in a pending criminal matter. We agree that in denying the
state’s second motion to disqualify, the trial judge attempted to
refute the charges of partiality. This created an independent
basis for disqualification. See Bundy v. Rudd, 366 So. 2d 440, 442
(Fla. 1978) (“When a judge has looked beyond the mere legal
sufficiency of a suggestion of prejudice and has attempted to
refute the charges of partiality, he has then exceeded the proper
scope of his inquiry and on that basis alone established grounds
for his disqualification.”); accord Lee Mem’l Health Sys. v. State,
Agency for Health Care Admin., 910 So. 2d 892, 893 (Fla 1st DCA
2005); Martin v. State, 820 So. 2d 403, 404 (Fla. 3rd DCA 2002).
     We grant the petition but withhold formal issuance of the
writ as we are confident the judge will promptly issue an order of
disqualification.

RAY, OSTERHAUS, and WINOKUR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Petitioner.

Thomas M. Findley of Baker, Donelson, Bearman, Caldwell &
Berkowitz, PC, Tallahassee, for Respondent.




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