        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          RONNIE WILLIAMS,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-3723

                              [April 1, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 06-016838
CF10A.

  Carey Haughwout, Public Defender, and Jonathan Dodson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Ronnie Williams challenges the trial judge’s order vacating a
predecessor judge’s order suppressing evidence, eventually leading to his
conviction for, among other charges, possession of cocaine. Williams
argues that the trial court strayed from its role as a neutral arbiter in
sua sponte reconsidering the predecessor judge’s suppression order. We
must agree and reverse.

   In the events leading up to the charges, law enforcement officers
approached Williams outside of a market where they were authorized to
issue trespass warnings. A detective asked Williams for identification,
ran a check for warrants, and found none. The encounter ultimately led
to a pat down of Williams. The precise facts beyond that point are in
dispute, but the state presented evidence that the detective felt an object
in Williams’ pocket, at which point Williams took a swing at him and ran.
When the officers caught him, Williams was pushed to the ground. The
detective looked down and saw a container falling out of Williams’ pocket,
partially open and with pieces of crack cocaine coming out of his pocket
and onto the ground. In a search incident to arrest, the detective found
another container of crack in Williams’ pocket.

   Williams moved to suppress evidence of the two containers of crack
cocaine. The predecessor trial judge granted Williams’ motion as to the
container in Williams’ pocket, but denied it as to the container on the
ground. Four years later, Williams was called to trial before a successor
judge. A jury was empanelled, sworn and instructed to report back to
court on the following day.

    At the beginning of the trial proceedings the next morning, the state
informed the court that an issue had arisen with the evidence: “During
storage it appears that the tops of the containers have opened. Now both
containers are open and there’s just pieces of crack cocaine throughout
the bag. Obviously [based on the predecessor judge’s suppression order]
we can only introduce one container and one set of cocaine.” The court
inquired into how that would be done without breaking the chain of
custody. In a colloquy between the court and defense counsel—with very
little input from the state—the parties discussed a resolution of the issue
and the soundness of the predecessor judge’s ruling on the motion to
suppress.

   During this discussion, the court learned Williams was disclaiming
possession of all of the cocaine, and therefore suggested that Williams did
not have standing1 to challenge the admission of the cocaine, and,
without any prompting from the litigants, asked the state if it was
moving to reconsider the prior judge’s suppression order:

      DEFENSE:         My client is saying none of it. In other words,
                       he didn’t own any of this cocaine.

                       ....

      THE COURT:       Then he has no standing to object to either
                       one if he doesn’t own it, if it’s not his.

      DEFENSE:         But Judge Gold already suppressed the one
                       that was supposedly in his pocket.


1 See generally Rakas v. Illinois, 439 U.S. 128, 148 (1978) (holding that
petitioners, who asserted neither a property interest nor a possessory interest
in property searched or seized, were not entitled to assert a constitutional
challenge to the search).

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       THE COURT:      [Directing a question to the state] Are you
                       moving for the Court to reconsider at this
                       time?

       STATE:          Yes, your Honor.

       THE COURT:      [Directing a question to defense counsel]
                       What evidence do you have of standing to
                       object to that cocaine?

       DEFENSE:        The fact that it was suppressed and now it’s
                       been commingled.

       THE COURT:      I am vacating the [predecessor judge’s] order
                       of suppression.2

    The jury returned a guilty verdict.

    ‘“Every litigant, including the State in criminal cases, is entitled to
nothing less than the cold neutrality of an impartial judge.’” Livingston v.
State, 441 So. 2d 1083, 1086 (Fla. 1983) (quoting State ex rel. Mickle v.
Rowe, 131 So. 331, 332 (Fla. 1930)). Although “it is permissible for a
trial judge to ask questions deemed necessary to clear up uncertainties
as to issues in cases that appear to require it,” J.F. v. State, 718 So. 2d
251, 252 (Fla. 4th DCA 1998), “the trial judge serves as the neutral
arbiter in the proceedings and must not enter the fray by giving ‘tips’ to
either side,” Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4th DCA
1993).

    The evaluation of whether a trial judge has departed from his or her
role as neutral arbiter focuses on actions ‘“from which a litigant may
reasonably question a judge’s impartiality rather than the judge’s
perception of his [or her] ability to act fairly and impartially.’” Id. at 294
(alteration in original) (quoting Livingston, 441 So. 2d at 1086). There is
no shortage of authority from Florida courts that have considered this
issue and then reversed where the trial court improvidently assisted the
state:

       In Chastine, this court disqualified a trial judge who passed
       a note to the prosecutor giving the attorney strategy tips.
       629 So. 2d at 295. Similarly, in J.F., this court reversed

2The trial court solicited testimony from Williams as to the issue of standing,
but Williams, through his attorney, declined to testify.

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      where a trial judge “assumed the role of the prosecutor by
      directing a witness for the state to obtain additional
      evidence” and sua sponte continued a hearing pending
      results of a fingerprint examination. 718 So. 2d at 252. In
      Asbury v. State, 765 So. 2d 965 (Fla. 4th DCA 2000), this
      court, citing J.F. and Chastine, determined that a trial court
      judge became “an active participant by prompting the State
      to present evidence and by sua sponte recalling witnesses
      and then asking them questions.” 765 So. 2d at 965. See
      also Lyles v. State, 742 So. 2d 842 (Fla. 2d DCA 1999)
      (finding that the trial court committed fundamental error by
      sua sponte ordering defendant’s fingerprints and bifurcating
      hearing to allow additional testimony). In McFadden v. State,
      732 So. 2d 1180, 1183 (Fla. 4th DCA 1999), this court found
      reversible error where the trial court assisted “an
      unprepared state attorney” by inviting the state to reopen its
      case after the defendant had moved to dismiss because there
      had not been any identification of the defendant and the
      state had not established that the defendant had been
      informed of the conditions of probation.

Lee v. State, 789 So. 2d 1105, 1106-07 (Fla. 4th DCA 2001) (reversing
where judge suggested to prosecutor, after he finished questioning
witness, to have witness identify defendant’s scars and tattoos on his
forearm for the jury).

    Here, the state was facing an evidentiary dilemma with what became
commingled crack cocaine and its need to somehow separate the
previously suppressed evidence from the admissible evidence. When the
trial court sought to prompt the state to move for reconsideration of the
suppression order, it was reasonable for Williams to question the trial
court’s neutrality. And given the fact that a jury had been seated and
proceedings were underway, the trial court’s sua sponte intervention may
have derailed Williams’ defense strategy. Because the trial court erred in
entering the fray, we reverse and remand for a new trial.

    In so holding, we do not suggest that a trial judge may never
reconsider a predecessor judge’s ruling. To the contrary, “[i]t is settled
law that while a trial court has jurisdiction of a case, and upon
appropriate motion or objection made by either counsel, it has the
inherent power to reconsider a previous ruling made on a motion to
suppress.” State v. Graham, 721 So. 2d 361, 362 (Fla. 4th DCA 1998)
(citing Savoie v. State, 422 So. 2d 308, 312 (Fla. 1982); Obregon v. State,
601 So. 2d 616, 616 (Fla. 3d DCA 1992)). It is critical, however, that the

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“appropriate motion or objection” originate from one of the parties, lest
the trial court torpedo its role as an impartial arbiter.

   Reversed and remanded for a new trial.

WARNER and GROSS, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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