       Third District Court of Appeal
                                State of Florida

                           Opinion filed January 06, 2016.
          Not final until disposition of timely filed motion for rehearing.
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                                No. 3D15-2426
                           Lower Tribunal No. 15-4058
                              ________________


                             The State of Florida,
                                     Petitioner,

                                         vs.

                                  Octavio Oliu,
                                    Respondent.

      A Case of Original Jurisdiction – Prohibition.

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for petitioner.

      Akerman LLP, and Ari H. Gerstin, for respondent.


Before SHEPHERD, ROTHENBERG, and SALTER, JJ.

              ON MOTION FOR REHEARING/CLARIFICATION

      ROTHENBERG, J.

      The State of Florida (“the State”) petitioned this Court for a writ of

prohibition directed to the trial judge, who denied the State’s sworn motion for
disqualification.   The grounds for disqualification were: (1) the trial judge’s

acknowledged previous attorney-client relationship with the City of Sweetwater

Police Department, which appeared as a third party duces tecum witness before the

trial judge on a show cause order why it should not be held in contempt for its

failure to comply with a subpoena duces tecum for production of documents; (2)

the trial judge’s acknowledged personal and extra-judicial knowledge regarding

facts asserted during that discovery dispute; and (3) the trial judge’s acknowledged

previous attorney-client relationship with the defendant, who he represented in

another case. The defendant in the instant case is a City of Sweetwater police

officer charged with official misconduct and fraud allegedly enabled by his status

as a police officer. The criminal charges are being pursued by the Statewide

Prosecutor.

      After reviewing the petition, response, and record, this Court denied the

petition without reaching the merits based on our finding that the motion to

disqualify the trial judge was not timely filed. Thereafter, the State filed a motion

for rehearing and clarification, arguing that because this Court issued its order

denying the petition before the time had expired for the State to file its reply brief,

this Court’s order was premature. In its motion for rehearing, the State made the

arguments it would have made had it been afforded the opportunity to file a reply.

Because Florida Rule of Appellate Procedure 9.100(k) provides that “[w]ithin 20



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days thereafter or such other time by the court, the petitioner may serve a reply . . .

,” we treat the petitioner’s motion for rehearing/clarification not only as such but

also as a timely-filed reply.

      “A motion to recuse or disqualify a trial judge is legally sufficient when the

alleged facts would create in a reasonably prudent person a well-founded fear of

not receiving a fair and impartial trial.” Valdes-Fauli v. Valdes-Fauli, 903 So. 2d

214, 216 (Fla. 3d DCA 2005). The allegations contained in the motion must be

taken as true. Masten v. State, 159 So. 3d 996, 997 (Fla. 3d DCA 2015). Actual

bias or prejudice need not be shown, rather it is the appearance of bias or prejudice

which requires disqualification. Marcotte v. Gloeckner, 679 So. 2d 1225, 1226

(Fla. 5th DCA 1996).

      In the instant criminal case, the State has charged the defendant with acting

illegally and fraudulently while serving as a City of Sweetwater police officer.

The trial judge represented this same police officer in his appeal against a police

department in a separate case, and thus, the trial court developed an attorney-client

relationship and became privy to confidential communications and insight with a

defendant presently before him on criminal charges. This obvious conflict is

compounded by the State’s representations that the defendant’s conduct in the

instant case will be assessed, in part, against the laws, rules, and regulations that

govern the conduct of Sweetwater Police Department employees. The trial judge



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has admitted that he represented the City of Sweetwater in connection with the

reorganization of its police department, he was familiar with the problems that led

to the police department’s reorganization, and he submitted a memo to the City of

Sweetwater with his recommendations, which has subsequently been lost or

destroyed.

      While these allegations give rise to an objectively reasonable fear of bias or

prejudice requiring disqualification of the trial judge, we are compelled to deny the

petition for writ of prohibition because the motion to disqualify the trial judge was

not timely filed. Florida Rule of Judicial Administration 2.330 provides that a

motion to disqualify shall be filed within a reasonable time not to exceed ten days

after discovery of the facts constituting the grounds for the motion. The motion to

disqualify filed in the instant case on September 28, 2015, was predicated on

disclosures made by counsel for the defendant and the trial court on July 15, 2015

and August 19, 2015. Thus, because the motion was not timely filed, see Crespo v.

Crespo, 762 So. 2d 568, 569 (Fla. 3d DCA 2000), we are compelled to deny the

instant petition. We, therefore, deny rehearing and grant clarification by issuance

of this opinion. Although we have denied the petition, we note that rule 2.330(i)

permits a judge to enter an order of disqualification on his own initiative. Fla. R.

Jud. Adm. 2.330(i) (“Judge’s Initiative. Nothing in this rule limits the judge’s

authority to enter an order of disqualification on the judge’s own initiative.”)



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Petition denied.




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