        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                           STATE OF FLORIDA,
                               Petitioner,

                                      v.

                             CEDRICK WHITE,
                               Respondent.

                               No. 4D14-667

                             [October 8, 2014]

   Petition for writ of prohibition to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Matthew I. Destry, Judge; L.T. Case
No. 14-1486 CF10A.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach for petitioner.

  Howard Finkelstein, Public Defender, and Sarah Sandler, Assistant
Public Defender, Fort Lauderdale, for respondent.

PER CURIAM.

   The state petitions for a writ of prohibition to review the denial of its
motion to disqualify the trial judge. We treat the petition as both a
petition for a writ of prohibition and a petition for a writ of certiorari. We
grant the petition in both respects.

    The state charged the defendant with lewd or lascivious molestation of
a person less than twelve by a person eighteen years of age or older – a
life felony. §§ 775.082(3)(a)4. & 800.04(5)(b), Fla. Stat. (2010). The
defendant requested the judge to set a bond unless the state could
establish that proof of guilt is evident or the presumption is great,
pursuant to State v. Arthur, 390 So. 2d 717, 720 (Fla. 1980). After
holding an Arthur hearing, the judge set a bond for the defendant.

  The state later filed a motion pursuant to Williams v. State, 110 So. 2d
654 (Fla. 1959), seeking to introduce at trial similar fact evidence which
another child alleged against the defendant. The judge refused to rule on
the state’s motion before trial. In light of the judge’s refusal to rule, the
state nolle prossed the charges and re-filed the charges under a new case
number later that day.

   At arraignment for the re-filed charges, the judge sua sponte ordered
the defendant released on his own recognizance without taking any
evidence or argument. The judge then indicated that, as a matter of
policy, he does not entertain Williams rule motions before trial. The
judge stated, “[n]ow . . . my policy on Williams rule . . . I will make that
determination during the course of the trial, whether to admit it. I will
not hold a hearing prior.”

   The state timely moved to disqualify the judge on two grounds:
(1) based on the judge’s order releasing the defendant on his own
recognizance without taking any evidence or argument, in an apparent
reaction to the state’s decision to nolle prosse and then re-file the
charges against the defendant; and (2) based on the judge’s articulation
of a policy not to hear Williams rule motions before trial. The judge
denied the motion as being legally insufficient.

   The state then filed the instant petition raising the same two grounds.
The defendant concedes on the second ground that the judge “should be
compelled to renounce [his] policy of not hearing Williams rule motions
prior to trial.” Our review is de novo. See Parker v. State, 3 So. 3d 974,
982 (Fla. 2009) (“The standard of review of a trial judge’s determination
on a motion to disqualify is de novo.”) (citation omitted).

   To the extent the state seeks review of the denial of its motion for
disqualification on the ground that the judge ordered the defendant
released on his own recognizance without taking any evidence or
argument, in an apparent reaction to the state’s decision to nolle prosse
and then re-file the charges against the defendant, we treat the petition
as seeking a writ of prohibition and grant the petition. See id. (“The
standard for viewing the legal sufficiency of a motion to disqualify is
whether the facts alleged, which must be assumed to be true, would
cause the movant to have a well-founded fear that he or she will not
receive a fair trial at the hands of that judge.”) (citation omitted).

   To the extent the state seeks review of the court’s announced policy
not to hear Williams rule motions before trial, we treat the petition as
seeking a writ of certiorari and grant the petition. The court’s announced
policy may cause irreparable harm to the state because it would have no
right of appeal if the defendant is acquitted. Further, the court’s
announced policy constitutes a denial of due process to the state and

                                     2
therefore is a departure from the essential requirements of the law. See
Nader v. Fla. Dep’t of Highway Safety & Motor Vehs., 87 So. 3d 712, 721
(Fla. 2012) (“[A] party seeking review through a petition for writ of
certiorari must demonstrate: (1) a material injury in the proceedings
that cannot be corrected on appeal (sometimes referred to as irreparable
harm); and (2) a departure from the essential requirements of the law.”)
(citation and internal brackets and quotation marks omitted).

   Based on the foregoing, we grant the state’s petition. We remand for
appointment of a successor judge. The state may request the successor
judge to reconsider the order releasing the defendant on his own
recognizance. See Fla. R. Jud. Admin. 2.330(h) (“Prior factual or legal
rulings by a disqualified judge may be reconsidered and vacated or
amended by a successor judge based upon a motion for reconsideration,
which must be filed within 20 days of the order of disqualification, unless
good cause is shown for a delay in moving for reconsideration or other
grounds for reconsideration exist.”).

   Petition granted.

STEVENSON, MAY and GERBER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                    3
