IN THE SUPREME COURT OF FLORIDA CASE NO. SC STATE OF FLORIDA, Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC WILLIAM T. TURNER, vs. Petitioner, STATE OF FLORIDA, Respondent. ON REVIEW OF THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA PETITION FOR REVIEW OF NONFINAL ORDER IN DEATH PENALTY POSTCONVICTION PROCEEDING (PURSUANT TO RULE 9.142(b) OF THE FLORIDA RULES OF APPELLATE PROCEDURE) James C. Lohman John R. Hamilton Florida Bar No Florida Bar No East 39th Street Foley & Lardner LLP Austin, Texas N. Orange Ave., Suite 1800 (512) Post Office Box 2193 Orlando, Florida (407) Attorneys for Petitioner

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT...1 THE BASIS FOR INVOKING THE JURISDICTION OF THE COURT...1 THE DATE AND NATURE OF THE ORDERS SOUGHT TO BE REVIEWED...5 THE NAME OF THE LOWER TRIBUNAL RENDERING THE ORDERS...5 THE NAME, DISPOSITION, AND DATES OF ALL PREVIOUS TRIAL, APPELLATE, AND POSTCONVICTION PROCEEDINGS RELATING TO THE CONVICTION AND DEATH SENTENCE THAT ARE THE SUBJECT OF THE PROCEEDINGS IN WHICH THE ORDER SOUGHT TO BE REVIEWED WAS ENTERED...6 THE FACTS UPON WHICH THE PETITIONER RELIES...12 THE NATURE OF THE RELIEF SOUGHT...15 ARGUMENT IN SUPPORT OF PETITION...15 A. THE STANDARD FOR JUDICIAL DISQUALIFICATION...15 B. THE DISQUALIFICATION MOTION WAS TIMELY...17 C. THE DISQUALIFICATION MOTION WAS LEGALLY SUFFICIENT...19 CONCLUSION...21 CERTIFICATE OF SERVICE...22 CERTIFICATE OF COMPLIANCE...22 i

3 CASES TABLE OF AUTHORITIES Page Amendment to Fla. Rules of Appellate Procedure (Rule 9.142), 837 So. 2d 911 (Fla. 2002)...4 Anderson v. Glass, 727 So. 2d 1147 (Fla. 5th DCA 1999)...2 Arbelaez v. State, No. SC , 2008 WL (Fla. April 3, 2008)...4 Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978)...5 Chamberlain v. State, 881 So. 2d 1087 (Fla. 2004), cert. denied, 544 U.S. 930, 125 S. Ct. 1669, 161 L. Ed. 2d 495 (2005)...14, 20 Chillingworth v. State, 846 So. 2d 674 (Fla. 4th DCA 2003)...17 Ferrell v. State, 880 So. 2d 578 (Fla. 2004)...4 Golding v. Director of Pub. Safety Dep t, 400 So. 2d 990 (Fla. 3d DCA 1981)...15 Inphynet Contracting Servs. v. Soria, 37 So. 3d 299 (Fla. 4th DCA 2010)...17 Jackson v. State, 599 So. 2d 103 (Fla. 1992), cert. denied, 506 U.S. 1004, 113 S. Ct. 612, 121 L. Ed. 2d 546 (1992)...20 Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla. 1989)...15 Lynch v. State, 2 So. 3d 47 (Fla. 2008)...2, 16 ii

4 Mansfield v. State, 911 So. 2d 1160 (Fla. 2005)...20 Michaud-Berger v. Hurley, 607 So. 2d 441 (Fla. 4th DCA 1992), review denied, 614 So. 2d 503 (Fla. 1993)...17 Parker v. State, 3 So. 3d 974 (Fla. 2009)...16 Porter v. McCollum, -- U.S. --, 130 S. Ct. 447, 175 L. Ed. 2d 398 (2009)...1, 12-13, Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)...10 Rivera v. State, 717 So. 2d 477 (Fla. 1998)...14, 20 Rodriguez v. State, 919 So. 2d 1252 (Fla. 2005)...16 Schwab v. State, 814 So. 2d 402 (Fla. 2002)...14 Sears v. Upton, -- U.S. --, 130 S. Ct. 3259, 177 L. Ed. 2d 1025 (2010)...1, 12-13, 18 State v. Fourth District Court of Appeal, 697 So. 2d 70 (Fla. 1997)...3 State v. Matute-Chirinos, 713 So. 2d 1006 (Fla. 1998)...3 State v. Voong Leng, 987 So. 2d 236 (Fla. 4th DCA 2008) Stein v. State, 995 So. 2d 329 (Fla. 2008)...16 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) iii

5 Sweet v. State, 880 So. 2d 578 (Fla. 2004)...4 Trepal v. State, 754 So. 2d 702 (Fla. 2000) Turner v. Crosby, 339 F.3d 1247 (11th Cir. 2003), cert. denied, 541 U.S. 1034, 124 S. Ct. 2104, 158 L. Ed. 2d 718 (2004)...9, 12 Turner v. Crosby, 85 Fed. App x 194 (11th Cir. 2003) (table)...9 Turner v. Crosby, 880 So. 2d 1213 (Fla. 2004) (table)...10 Turner v. State, 530 So. 2d 45 (Fla. 1987), cert. denied, 489 U.S. 1040, 109 S. Ct. 1175, 103 L. Ed. 2d 237 (1989)...7, 12 Turner v. State, 614 So. 2d 1075 (Fla. 1992)...8, 12 Turner v. State, 969 So. 2d 1017 (Fla. 2007) (table)...11 Turner v. State, Case No. SC , 2009 WL (Fla. Feb. 9, 2009)...4, 11 Turner v. State, Case No. SC , 2010 WL (Fla. Sept. 28, 2010), petition for cert. filed, No , 79 U.S.L.W (Dec. 27, 2010) Williams v. State, 987 So. 2d 1 (Fla. 2008)...14 CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Const. amend VI...13 U.S. Const. amend VIII...13 iv

6 U.S. Const. amend XIV...13 Art. V, 2(a), Fla. Const...15 Art. V, 3(b)(1), Fla. Const Art. V, 3(b)(7), Fla. Const...5 Art. V, 4(b)(3), Fla. Const U.S.C , Fla. Stat...16 COURT RULES Fla. R. Jud. Admin Fla. R. Jud. Admin (e)...14, 17 Fla. R. Jud. Admin (f)...16 Fla. R. Crim. P Fla. R. Crim. P Fla. R. App. P (h)...5, 14 Fla. R. App. P (a)(1)(A)(i)...2 Fla. R. App. P (b)(3)...2 Fla. R. App. P (c)...15 Fla. R. App. P , 4 Fla. R. App. P (l)...22 Fla. R. App. P (b)...1, 4-5 Fla. R. App. P (b)(3)(A)...5, 15 v

7 PRELIMINARY STATEMENT The petitioner, William T. Turner, is referred to in this petition as "Turner." The respondent, the State of Florida, is referred to as the "State." The consecutively-paginated appendix accompanying this petition is cited as A: :, according to tab letter and page number. Thus, for example, the citation A:E:90 would refer to page 90 of the document located in tab E of the appendix. THE BASIS FOR INVOKING THE JURISDICTION OF THE COURT As more fully explained below, this court has jurisdiction to review the nonfinal order at issue pursuant to article V, section 3(b)(1) of the Florida Constitution. The governing procedure is set forth in rule 9.142(b) of the Florida Rules of Appellate Procedure. The order that is the subject of this petition is an order (the Order ) in which the trial judge denied Turner s motion to disqualify the trial judge. A:D:82-84; see also A:C: The motion was filed contemporaneously with a motion to vacate Turner s death sentence pursuant to the decisions in Porter v. McCollum, -- U.S. --, 130 S. Ct. 447 (2009), and Sears v. Upton, -- U.S. --, 130 S. Ct (2010). A:B: Both motions were filed on November 30, A:A:27; see also A:B:65; A:C:81. 1

8 The traditional and historical appellate remedy for a party aggrieved by a circuit court s erroneous denial of a motion for judicial disqualification is a petition for a writ of prohibition filed in the appropriate district court of appeal. See, e.g., Anderson v. Glass, 727 So. 2d 1147, 1147 (Fla. 5th DCA 1999). 1 Here, however, this court has exclusive jurisdiction to review the nonfinal Order in question. Jurisdiction is vested in this court, rather than the First District Court of Appeal, because: (1) Turner is currently subject to a death sentence; (2) the Order was entered in a pending postconviction proceeding in which Turner is challenging his death sentence. See, e.g., Lynch v. State, 2 So. 3d 47, 78 (Fla. 2008). This court does not have jurisdiction to entertain petitions for common law certiorari. Trepal v. State, 754 So. 2d 702, 706 (Fla. 2000). But this court does have exclusive jurisdiction under article V, section 3(b)(1) of the Florida Constitution to hear appeals from final judgments of trial courts imposing the death penalty. Art. V, 3(b)(1), Fla. Const.; see also Fla. R. App. P (a)(1)(A)(i). That constitutional provision encompasses exclusive jurisdiction to review all types 1 The jurisdiction of the district courts of appeal in such cases is bestowed by article V, section 4(b)(3) of the Florida Constitution. Under that provision, the district courts of appeal are vested with jurisdiction to issue writs of prohibition. See also Fla. R. App. P (b)(3),

9 of collateral proceedings in death penalty cases. State v. Fourth District Court of Appeal, 697 So. 2d 70, 71 (Fla. 1997); accord State v. Matute-Chirinos, 713 So. 2d 1006, (Fla. 1998). This court has explained its jurisdiction over orders entered in postconviction proceedings as follows: [A]n appeal from a motion for postconviction relief must be taken to the appellate court that has jurisdiction over the appeal from the underlying conviction and sentence. Collateral proceedings in death penalty cases are essentially attacks on the imposition of the death penalty. Because this Court has jurisdiction over death penalty cases, it is logical that such attacks be directed to this Court. As a practical matter, we routinely entertain appeals from final orders in death penalty collateral proceedings, see Fla. R. Crim. P , and on occasion review interlocutory orders in such proceedings. Fourth District Court of Appeal, 697 So. 2d at 71 (emphasis in original; further citations omitted). In Trepal, this court clarified that its jurisdiction over capital cases under article V, section 3(b)(1) extends to nonfinal orders entered in capital postconviction proceedings-- orders that, outside the capital context, would be subject to certiorari review in a district court of appeal. 754 So. 2d at 707. This court drew upon the district courts use of the writ of certiorari to provide an instructive model of how this Court may exercise its jurisdiction in such cases. Id. The court 3

10 therefore adopted a procedure mirroring the requirements of rule of the Florida Rules of Appellate Procedure. Id. That procedure was eventually embodied in rule 9.142(b) of the Florida Rules of Appellate Procedure. See Amendment to Fla. Rules of Appellate Procedure (Rule 9.142), 837 So. 2d 911, (Fla. 2002). Using rule 9.142(b), this court has exercised its jurisdiction to quash nonfinal orders entered in various capital postconviction proceedings, including one proceeding in which this court granted relief of that nature to Turner. See Turner v. State, Case No. SC , 2009 WL (Fla. Feb. 9, 2009) (quashing orders denying the applications of two pro bono attorneys who applied for admission to appear pro hac vice on Turner s behalf); see also Arbelaez v. State, No. SC , 2008 WL , *1 (Fla. April 3, 2008) (quashing nonfinal order in which trial court granted State s Motion to Establish Procedure During the Psychological Examination of the Defendant ); Sweet v. State, 880 So. 2d 578, 578 (Fla. 2004) (quashing order replacing former Capital Collateral Counsel-North attorneys with different registry counsel); Ferrell v. State, 880 So. 2d 578, 578 (Fla. 2004) (same); Trepal, 754 So. 2d at (order compelling discovery from defendant). Thus, the Order at issue here is similarly subject to review in this court under rule 9.142(b). 4

11 Alternatively (and much more simply), this court has jurisdiction to review the Order merely by virtue of the court s authority to issue writs of prohibition to lower courts under article V, section 3(b)(7) of the Florida Constitution. See, e.g., Bundy v. Rudd, 366 So. 2d 440, (Fla. 1978). In that respect, rule 9.142(b) is unnecessary to this court s jurisdiction here. THE DATE AND NATURE OF THE ORDERS SOUGHT TO BE REVIEWED In this petition, Turner seeks review of an Order in which the trial court denied Turner s motion to disqualify the trial judge. A:D: The trial court signed that Order on December 13, A:D:83. The Order, however, was not formally rendered until the following day, December 14, A:A:27; see Fla. R. App. P (h) (defining date of rendition of an order). Turner s notice of appeal was filed within 30 days after the date of rendition. A:A:27; A:F:96-100; see Fla. R. App. P (b)(3)(A). THE NAME OF THE LOWER TRIBUNAL RENDERING THE ORDERS The lower tribunal is the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida. A:B:28. The presiding judge is The Honorable John D. Southwood, who entered the Order that Turner is requesting this court to review. A:D:83. THE NAME, DISPOSITION, AND DATES OF ALL PREVIOUS TRIAL, 5

12 APPELLATE, AND POSTCONVICTION PROCEEDINGS RELATING TO THE CONVICTION AND DEATH SENTENCE THAT ARE THE SUBJECT OF THE PROCEEDINGS IN WHICH THE ORDER SOUGHT TO BE REVIEWED WAS ENTERED State v. Turner, Case No CF-6504-AXXX-MA (Fla. Cir. Ct., 4th Jud. Cir. Nov. 1, 1985): Following Turner s arrest on July 3, 1984, this was the original criminal action in which Turner was eventually sentenced to death. The court was the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida. The guilt phase of the trial began on August 13, 1985, and concluded with a guilty verdict on August 16, The penalty phase of the case was tried on August 23, 1985, and the jury returned an advisory verdict that same day, recommending a death sentence by a 7-5 vote. 2 The trial court imposed that sentence at a hearing held on November 1, motion for a new trial on November 27, Turner filed a The motion was denied in an order rendered that same day. Turner v. State, Case No. 67,987 (Fla. July 7, 1988): This was Turner s direct appeal from his conviction and death sentence. Turner filed his notice of appeal on November 27, On July 7, 1988, this court affirmed Turner s conviction by a unanimous vote and affirmed his death sentence by a 5-2 vote. Turner unsuccessfully moved for rehearing in a motion filed July 22, This court s mandate issued on October 25, The 2 At the same time, Turner was also convicted of a second murder, for which the jury recommended (also by a 7-5 vote) a life sentence. Such a sentence was eventually imposed. 6

13 decision is reported as Turner v. State, 530 So. 2d 45 (Fla. 1987), cert. denied, 489 U.S (1989). Turner v. Florida, Case No (U.S. Sup. Ct. Feb. 21, 1989): Turner unsuccessfully sought certiorari from the United States Supreme Court following this court s disposition of his direct appeal. The Supreme Court denied certiorari on February 21, The citation for the table noting the denial of Turner s petition for certiorari is Turner v. Florida, 489 U.S (1989) (table). State v. Turner, Case No CF-6504-AXXX-MA (Fla. Cir. Ct., 4th Jud. Cir. Nov. 6, 1985): Following the resolution of his direct appeal (and the issuance of a death warrant on March 29, 1990), Turner filed a Motion for Post Conviction Relief on October 15, 1990 in the circuit court, pursuant to the thenexisting version of rule of the Florida Rules of Criminal Procedure. The circuit court denied that motion, without a hearing, in an order rendered on November 6, That order is unreported. State v. Turner, Case No. 77,062 (Fla. Dec. 24, 1992): This proceeding was Turner s appeal from the order denying his motion for postconviction relief under rule Turner filed his notice of appeal on December 5, This court originally affirmed the trial court in a decision issued on June 25, 1992, 7

14 but the court withdrew that opinion and rendered a modified decision affirming the trial court on December 24, The court s mandate issued on March 25, The decision is reported as Turner v. State, 614 So. 2d 1075 (Fla. 1992). Turner v. Dugger, Case No. 75,848 (Fla. Dec. 24, 1992): Turner commenced this original proceeding in this court through a petition for a writ of habeas corpus filed on April 16, For decision purposes, this court joined the case with Turner s abovedescribed appeal from the denial of his rule motion. The decision denying Turner s petition was originally issued on June 25, 1992, but the court withdrew that opinion and rendered a modified decision denying the petition on December 24, The court s mandate issued on March 25, The decision is reported as Turner v. State, 614 So. 2d 1075 (Fla. 1992). Turner v. Crosby, Case No CV-J-20 (U.S. Dist. Ct. M.D. Fla. June 26, 2002): Turner commenced this proceeding on July 15, 1993, through a petition seeking habeas corpus relief under 28 U.S.C The tribunal was the United States District Court for the Middle District of Florida. The court denied Turner s petition and dismissed his case through an order entered on June 26, The decision is unreported. Turner v. Crosby, Case No (11th Cir. July 29, 2003): This was Turner s appeal from the denial of his petition 8

15 for relief under 28 U.S.C The tribunal was the United States Court of Appeals for the Eleventh Circuit. Turner initiated the proceeding through a petition for a certificate of appealability filed on September 20, The court affirmed the trial court in a decision issued on July 29, 2003, and it denied Turner s requests for rehearing and rehearing en banc in an order issued on September 22, The court s decision on the merits is reported as Turner v. Crosby, 339 F.3d 1247 (11th Cir. 2003), cert. denied, 541 U.S (2004). 3 Turner v. Crosby, Case No (U.S. Sup. Ct. May 3, 2004): Turner unsuccessfully sought certiorari from the United States Supreme Court following the Eleventh Circuit s disposition of his appeal from the denial of his petition for habeas corpus under 28 U.S.C The Supreme Court denied certiorari on May 3, The citation for the table noting the denial of Turner s petition for certiorari is Turner v. Crosby, 541 U.S (2004) (table). Turner v. Crosby, Case No. SC (Fla. May 4, 2004): Turner commenced this original proceeding in this court through a petition for a writ of habeas corpus filed on October 24, Turner sought relief pursuant to the decision in Ring v. Arizona, 3 The citation for the table noting the denial of Turner s requests for rehearing and rehearing en banc is Turner v. Crosby, 85 Fed. App x 194 (11th Cir. 2003) (table). 9

16 536 U.S. 584 (2002). This court denied Turner s petition in an order rendered on May 4, 2004, and it denied Turner s motion for rehearing in an order rendered on May 18, The decision is unreported, but the citation for the table noting the denial of Turner s petition is Turner v. Crosby, 880 So. 2d 1213 (Fla. 2004) (table). State v. Turner, Case No CF-6504-AXXX-MA (Fla. Cir. Ct., 4th Jud. Cir. Nov. 6, 1985): Following the decision of the Supreme Court of the United States in Atkins v. Virginia, 536 U.S. 304 (2002), Turner filed a motion in the circuit court on December 16, 2002, contending that he is entitled to relief from his death sentence because he is mentally retarded. That motion, which was subsequently amended, was denied by the circuit court (without an evidentiary hearing) in an order rendered on September 14, The order is unreported. Turner filed a timely notice of appeal directed to that order on October 5, Turner v. State, Case No. SC (Fla. March 14, 2007): In the Atkins proceeding in the circuit court, Turner filed, on November 30, 2004, a motion to disqualify Judge Southwood. Judge Southwood denied that motion in an order entered on May 23, 2006, a ruling that he reaffirmed in an order rendered on June 6, 2006, in which he denied Turner s motion for reconsideration. On July 18, 2006, Turner filed in this court a 10

17 petition seeking review of the order denying his disqualification motions. This court denied Turner s petition in a decision issued on March 14, Turner filed a motion for rehearing on March 26, 2007, which this court denied in an order rendered on October 12, This court s decision is unreported, but the citation for the table noting the denial of Turner s petition is Turner v. State, 969 So. 2d 1017 (Fla. 2007) (table). Turner v. State, Case No. SC , 2009 WL (Fla. Feb. 9, 2009): In the Atkins proceeding, the trial court, in February 2008, denied the applications for admission pro hac vice of two out-of-state attorneys who sought to appear pro bono on Turner s behalf. Turner sought review in this court pursuant to rule 9.142(b). On February 9, 2009, this court entered an unpublished order granting Turner s petition and quashing the trial court s orders. Turner v. State, Case No. SC , 2010 WL (Fla. Sept. 28, 2010): In an unpublished order rendered on September 28, 2010, this court affirmed the trial court s denial of Turner s Atkins motion. Turner v. Florida, Case No : This is Turner s pending proceeding in the Supreme Court of the United States, requesting that Court to grant certiorari with respect to the order in which this court affirmed the denial of Turner s Atkins motion. Turner s petition for certiorari was filed on December 11

18 27, 2010, and his request for certiorari will be fully briefed as of February 8, THE FACTS UPON WHICH THE PETITIONER RELIES Turner is a Florida inmate currently subject to a death sentence based upon a murder conviction. See A:B:28-29; see generally Turner v. State, 530 So. 2d 45 (Fla. 1987); see also Turner v. State, 614 So. 2d 1075 (Fla. 1992); Turner v. Crosby, 339 F.3d 1247 (11th Cir. 2003). On November 30, 2010, relying upon the decisions of the United States Supreme Court in Porter v. McCollum, -- U.S. --, 130 S. Ct. 447 (2009), and Sears v. Upton, - - U.S. --, 130 S. Ct (2010), Turner filed a motion (the Porter Motion ) seeking to vacate his death sentence on the ground that a constitutionally inadequate and impermissible analysis had been applied to Turner s prior claim based on ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). A:B:38-63; see also A:A:27. Specifically, Turner alleged that the Florida courts, in deciding his Strickland claim adversely to him, had violated the Sixth, Eighth, and Fourteenth Amendments by virtue of the courts failure to properly consider mitigating evidence proffered in support of Turner s Strickland claim--to the same extent that the Florida courts had committed such a constitutional violation in Porter. A:B:

19 Contemporaneously with his Porter Motion, Turner also filed a motion to disqualify the trial judge (the Disqualification Motion ). A:C:66-81; see also A:A:27. In that motion, Turner sought Judge Southwood s disqualification because Judge Southwood had already, in prior proceedings leading back to his initial sentencing of Turner to death, repeatedly and consistently stated his unwillingness and refusal to consider, or give any weight to, the very types of mitigation evidence that constitutionally must be considered under Porter and Sears. A:C: Judge Southwood did not hold a hearing on the Disqualification Motion. 4 Instead, he simply denied that motion through the Order that he signed on December 13, A:D:83. Judge Southwood denied the Disqualification Motion before the State even responded to that motion. A:E: The Order reads, in its entirety, as follows: This matter came before this Court on the Defendant s Motion for Judicial Disqualification. Upon review of the instant Motion, this Court finds that it is untimely, and, alternatively, legally insufficient because it is based merely on prior adverse rulings. See Fla. R. Jud. Admin (e) (providing that a motion to disqualify shall be filed 4 As of the date this petition was filed, the Porter Motion remained pending before Judge Southwood. Turner s counsel expect that the trial court will hold a hearing on that motion in the immediate future. 13

20 within a reasonable time not to exceed 10 days after discovery of the facts); Williams v. State, 987 So. 2d 1, 10 (Fla. 2008) (quoting Rivera v. State, 717 So. 2d 477, (Fla. 1998) and noting that the fact that a judge has made adverse rulings in the past against a defendant is generally considered a legally insufficient reason to warrant the judge s disqualification); Chamberlain v. State, 881 So. 2d 1087, 1097 (Fla. 2004) (noting that adverse rulings against a defendant is [sic] generally considered a legally insufficient basis for disqualification); Schwab v. State, 814 So. 2d 402, 414 (Fla. 2002) (holding that claims of judicial bias based on prior adverse rulings are legally insufficient to warrant judicial disqualification). For the above reasons, it is: ORDERED AND ADJUDGED that the Defendant s Motion for Judicial Disqualification is hereby DENIED. DONE AND ORDERED at Jacksonville, Duval County, Florida, this 13th day of December, A:D: The Order was formally rendered the following day, on December 14, A:A:27; see Fla. R. App. P (h) (defining date of rendition of an order). Turner timely filed his notice of appeal within 30 days after the rendition of the Order. 5 A:A:27; A:F:96-100; see Fla. R. App. P (b)(3)(A). 5 Turner s notice of appeal was admittedly an error; as this court quickly realized, Turner should instead have sought review of the Order through a petition filed directly with this court. But the error is of no moment. Under well-established law, the notice of appeal is to be treated as if Turner had sought the 14

21 THE NATURE OF THE RELIEF SOUGHT Turner requests that this court quash the trial court s Order denying the Disqualification Motion. If necessary, Turner asks this court to issue a writ of prohibition forbidding Judge Southwood from proceeding any further in this case. ARGUMENT IN SUPPORT OF PETITION As set forth below, Judge Southwood erred as a matter of law in denying Turner s Disqualification Motion. Turner s motion was both timely and legally sufficient. Judge Southwood therefore had no choice but to grant that motion. A. THE STANDARD FOR JUDICIAL DISQUALIFICATION The law governing motions to disqualify a trial judge is well established. The substantive right to seek judicial disqualification is embodied in section of the Florida Statutes, and the governing procedure is set forth in rule of the Florida Rules of Judicial Administration. Specifically, in a case (such as this one) in which there has been no prior disqualifications upon motion, a judge correct remedy. See, e.g., Johnson v. Citizens State Bank, 537 So. 2d 96, (Fla. 1989) (appeal treated as petition for writ of certiorari); Golding v. Director of Pub. Safety Dep t, 400 So. 2d 990, 991 (Fla. 3d DCA 1981) (appeal treated as petition for writ of mandamus); see also Art. V, 2(a), Fla. Const. ( no cause shall be dismissed because an improper remedy has been sought ); Fla. R. App. P (c) ( If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ). This court has already done so--when it issued an order on January 19, 2011, requiring Turner to file this petition. 15

22 presented with a motion to disqualify shall determine only the legal sufficiency of the motion and shall not pass upon the truth of the facts alleged. Fla. R. Jud. Admin (f); see also Parker v. State, 3 So. 3d 974, 982 (Fla. 2009). When disqualification is sought on the basis of a judge s alleged bias against the movant, the inquiry into the motion s legal sufficiency requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005). Whether a motion for judicial disqualification is legally sufficient is a question of law. See, e.g., Lynch v. State, 2 So. 3d 47, 78 (Fla. 2008); Stein v. State, 995 So. 2d 329, 334 (Fla. 2008). Denials of such motions are therefore reviewed de novo at the appellate level. See, e.g., Stein, 995 So. 2d at 334. Under that standard, the trial judge s denial of Turner s Disqualification Motion should be quashed by this court. 16

23 B. THE DISQUALIFICATION MOTION WAS TIMELY As to timeliness, rule requires that a motion to disqualify be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion. Fla. R. Jud. Admin (e). It is undisputed that Turner s Disqualification Motion was filed contemporaneously with his Porter Motion. A:A:27; see also A:B:65; A:C:81. Thus, the Disqualification Motion was obviously filed within ten days of the Porter Motion. Under the circumstances presented here, the Disqualification Motion was therefore timely as a matter of law. The trial court s conclusion to the contrary was based on a misunderstanding of the ten-day period prescribed by rule 2.330(e). Admittedly, most cases involving the timeliness of motions for judicial disqualification turn on an objectively verifiable triggering event that either did or did not occur within the ten days prior to the filing of the motion for disqualification. 6 Inphynet Contracting Servs. v. Soria, 37 So. 3d 299, 300 (Fla. 4th DCA 2010). But the triggering event here was the filing of Turner s Porter Motion. Before that motion was filed, Judge 6 Nevertheless, a timely motion for judicial disqualification can sometimes be predicated on the cumulative effect of events occurring within a short space of time if they cause a party to have a well-founded fear that he will not receive a fair and impartial handling of his case. Chillingworth v. State, 846 So. 2d 674, 676 (Fla. 4th DCA 2003) (quoting Michaud-Berger v. Hurley, 607 So. 2d 441, 446 (Fla. 4th DCA 1992)). 17

24 Southwood s failure and refusal to consider the mitigation evidence required by Porter v. McCollum, -- U.S. --, 130 S. Ct. 447 (2009), and Sears v. Upton, -- U.S. --, 130 S. Ct (2010), was legally irrelevant--and provided no basis (legally sufficient or otherwise) for Turner to request Judge Southwood s disqualification. On the contrary, it was only when Turner filed his Porter Motion that he had any grounds for Judge Southwood s disqualification based on the grounds set forth in that motion-- the judge s prior failure and refusal to consider the mitigation evidence required by Porter and Sears. Indeed, the view to the contrary--the view apparently held by both Judge Southwood and the State--leads inescapably to the absurd conclusion that Turner was required to move for Judge Southwood s disqualification based on his stated inability or refusal to comply with the requirements of Porter and Sears before those decisions even existed. For obvious reasons, that simply cannot be a correct view of the law. Nor is this case unique. Florida law recognizes that the ten-day period for seeking a judge s disqualification can begin to run contemporaneously with a judge s assignment to a case (or vice versa). For example, in State v. Voong Leng, 987 So. 2d 236 (Fla. 4th DCA 2008), the State moved for a judge s disqualification six days after the case was assigned to that 18

25 judge. Id. at 236. The judge denied the motion as both untimely and legally insufficient. Id. On review, the Fourth District held that the judge erred in concluding that the motion was untimely: Id. at 236 n.1. Although the county court cited untimeliness as one reason for denying the motion, this was incorrect, since the motion was filed less than ten days after the state learned that the case had been assigned to Judge Murphy.... A crucial fact forming a basis for the motion was the assignment of the case to Judge Murphy. The same rationale applies here. The ten-day period for Turner did not begin to run--and legally could not have possibly begun to run--until Turner filed his Porter Motion. When he did so, he already knew that Judge Southwood would be assigned to determine that motion, so Turner quite properly filed the Disqualification contemporaneously with the Porter Motion. A:A:27; see also A:B:65; A:C:81. The Disqualification Motion was therefore timely on its face, and Judge Southwood erred as a matter of law in concluding otherwise. C. THE DISQUALIFICATION MOTION WAS LEGALLY SUFFICIENT As for legal sufficiency, Turner readily concedes that prior adverse rulings generally do not provide a basis for a legally sufficient motion for judicial disqualification. See, e.g., Mansfield v. State, 911 So. 2d 1160, 1171 (Fla. 2005); 19

26 Chamberlain v. State, 881 So. 2d 1087, 1097 (Fla. 2004); Rivera v. State, 717 So. 2d 477, 481 (Fla. 1998); Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992). But Turner did not seek Judge Southwood s disqualification on that ground. A view to the contrary--the view that Judge Southwood adopted when he denied the Disqualification Motion--reflects a fundamental misunderstanding of that motion. It was not Judge Southwood s prior adverse rulings that caused Turner to have a reasonable fear of Judge Southwood s bias in determining the Porter Motion. Rather, as the face of the Disqualification Motion reveals, Turner s fear was based instead on Judge Southwood s prior expressions of the insignificance with which he viewed the mitigation evidence that the United States Supreme Court has now held must be considered, evaluated, and weighed in deciding a claim for ineffective assistance of counsel. A:B: Judge Southwood s previously-expressed scorn for that very mitigation evidence would cause any reasonable person in Turner s situation to fear that he or she had a biased judge. That fear is reasonable, rational, and based squarely on matters of record. The Disqualification Motion based on that fear was therefore legally sufficient, and it should have been granted. CONCLUSION For the foregoing reasons, this court should quash the Order denying Turner s Disqualification Motion. Turner further requests that this court grant him such other relief--such as a 20

27 writ of prohibition, if necessary--as this court may deem appropriate. James C. Lohman John R. Hamilton Florida Bar No Florida Bar No East 39th Street Foley & Lardner LLP Austin, Texas N. Orange Ave., Suite 1800 (512) Post Office Box 2193 Orlando, Florida Attorneys for Petitioner (407)

28 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States mail this 7th day of February, 2011, to: John I. Guy, Esq., Assistant State Attorney, counsel for respondent, at Duval County Courthouse, Jacksonville, Florida 32202; Charmaine Millsaps, Esq., Assistant Attorney General, counsel for respondent, at The Capitol, Tallahassee, Florida ; and The Honorable John D. Southwood, Circuit Judge, at Duval County Courthouse, 330 East Bay Street, Jacksonville, Florida John R. Hamilton CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this petition complies with the font requirements of rule 9.100(l) of the Florida Rules of Appellate Procedure. John R. Hamilton 22