ANTHONY JOHN PONTICELLI, Appellant, IN THE SUPREME COURT OF FLORIDA V. CASE NO. SC08-151 STATE OF FLORIDA, Appellee. / RESPONSE TO PETITION SEEKING REVIEW OF NON-FINAL ORDER/PETITION FOR WRIT OF PROHIBITION COMES NOW the State of Florida, and responds as follows to Ponticelli s petition seeking review of the trial court s order denying his motion to disqualify. For the reasons set out below, Ponticelli is not entitled to any relief. RESPONSE TO JURISDICTION This action appears to be governed by Florida Rule of Criminal Procedure 9.142. State v. Farr, 945 So. 2d 1291 (Fla. 2006) (unpub. op.). That rule requires that the petition be filed within 30 days of the nonfinal order to be reviewed. Fla. R. App. Pro. 9.142(b)(3)(A). Assuming without conceding that this issue should be reviewed now rather than on appeal from an adverse ruling on the underlying motion, Rule 9.142 would control. 1
The first order sought to be reviewed is the January 18, 2008, denial of rehearing of the denial of Ponticelli s second motion to disqualify the Fifth Judicial Circuit in general and Judge Musleh in particular. 1 On pages 20-24 of the petition, Ponticelli seeks review of the December 20, 2007, order which denied his December 8, 2007, motion to disqualify. Ponticelli never sought rehearing of this order, that order was final for all purposes on December 20, 2007, and the 9.142 petition is out-of-time, since it was filed on February 1, 2008, well outside the 30 days allowed by the Rules. RESPONSE TO COURSE OF PROCEEDINGS On pages 2-10 of the petition, Ponticelli sets out an argumentative version of the facts which alternates between attacks on the trial court and attacks on counsel for the State. The only basis for disqualification stated in the motion was that the trial prosecutor, Sarah Ritterhoff Williams, is now a County Court Judge in Marion County. Despite the histrionics of Ponticelli s pleading, the motion to disqualify which is the subject of this petition was denied as untimely on December 11, 1 While Ponticelli mentions it only in passing, he filed a third motion to disqualify, which was denied on December 20, 2007. (Attachment 1). 2
2007. 2 (Attachment 2). No other grounds for denial were stated, and no other issues are referred to in that order. THE MOTION WAS PROPERLY DENIED AS UNTIMELY On pages 11-23 of the petition, Ponticelli engages in a lengthy attack on the court and counsel for the State. However, because the motion to disqualify was properly denied as untimely, none of those matters have any relevance to the issue before this Court. Judge Ritterhoff Williams was elected to the County Court in October of 2006, and took office in January of 2007. Ponticelli=s motion to disqualify was filed ten (10) months later, and more than six (6) months after his successive postconviction relief motion was filed on May 17, 2007. Florida Rule of Judicial Administration 2.330(e) requires that a Amotion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion.@ Given that Judge Ritterhoff Williams had been a judge for almost a year when the 2 Judge Musleh reserved the right to recuse himself if a conflict arose after the deposition of Judge Ritterhoff Williams was taken. Apparently there is no conflict, since that deposition was taken on January 8, 2008, (Attachment 3) and more than 10 days have passed without the filing of her chambers in a motion to disqualify. 3
motion was filed, it is contrary to the express language of Rule 2.330(e) to suggest that Ponticelli=s motion, which was filed in the face of a scheduled hearing, is timely. The identity of Florida judges is a matter of public record, and the fact that Ponticelli=s attorney claims that she Ajust learned@ that fact does not supply a basis to excuse the untimeliness of the motion. The untimeliness of the motion to disqualify, and the lack of good faith underlying it, is highlighted by the fact that, in a footnote on page 16 of his motion to vacate, Ponticelli listed Judge Ritterhoff-Williams as a witness (albeit without calling her AJudge@), and gave her courthouse address and telephone number. 3 However, during the December 4, 2007, hearing on the motion to disqualify (which was never properly noticed), Ponticelli stated to the Court that he did not know that Ms. Ritterhoff Williams was a County Court Judge. The Circuit Court was told that the address and telephone number set out above for Judge Ritterhoff Williams was not taken from the Florida Bar 3 It appeared that this information was taken from the alphabetical listing of attorneys found in the Florida Bar Journal, which clearly indicates that Judge Ritterhoff Williams is a County Court Judge. In that motion, as required by the Rule, he listed Sarah Ritterhoff Williams as a witness, giving her address and telephone number as 110 NW 1st Ave., 2050, Ocala, FL 34475, (352)401-6781. Motion, at 10 n. 11. That is the address of the Marion County Courthouse. 4
Journal, but rather was obtained from the Florida Bar=s website 4 when the successive motion was prepared. 5 The Florida Bar=s website clearly indicates that Sarah Ritterhoff Williams is a Amember of the judiciary@ who is Aprohibited from practice by Rule.@ A copy of the webpage containing this information is attached. 6 These facts are not like the facts in Doorbal v. State, SC05-383 (Fla., Feb.14, 2008), where this Court found that a motion to disqualify based on matters that took place before counsel entered the case was timely when filed nine days after counsel entered an appearance in the case. Based upon these facts, Ponticelli discovered the basis for his motion to disqualify for Rule 2.330 purposes when he listed Judge Ritterhoff Williams as a witness in his May 17, 2007, successive motion to vacate. His motion to disqualify should 4 After Ponticelli made these statements in open court, the state filed a supplemental response to the motion to disqualify which attached a copy of the Florida Bar website. (Attachment 4). 5 A copy of the relevant portion of the transcript of the December 4, 2007, hearing is attached. (Attachment 5, at 3, 10, 20, 21.). 6 In an ironic, and disingenuous, bit of advocacy, Ponticelli states that the Fifth Judicial Circuit s website indicates that Judge Musleh s address and phone number are listed in the same building as Judge Ritterhoff Williams. Petition, at 14, n. 6. Ponticelli cannot claim ignorance in one breath and support his motion to disqualify in the next based upon essentially the same facts. 5
have been filed within 10 days thereafter. Because it was not filed until November 27, 2007 (the week before the scheduled hearing), that motion was untimely and was properly denied on that basis. Ponticelli has no valid claim that he did not know that Judge Ritterhoff Williams was a County Court judge, and there is no basis to excuse his untimeliness in bringing this motion. Ponticelli makes much of the argument that the timeliness of a motion to disqualify is based on when counsel learned of the basis for the motion. In order to credit that reasoning in the context of this case, this Court must accept that even though the Florida Bar website and member directory clearly indicate that Judge Ritterhoff Williams is a judge (and has been for a year), counsel for Ponticelli did not know that fact (which is public record) when she filed the successive motion in May of 2007 and listed Judge Ritterhoff Williams as a witness giving her courthouse address. It makes no sense at all to construe the timeliness provision of Rule of Judicial Administration 2.330 to be dependent upon when counsel claims to have learned of a fact that is a matter of public record and is, in fact, set out in the May 2007 pleading. The latest that this motion to disqualify should have been filed was ten (10) 6
days after the motion itself was filed. By waiting until the eve of the hearing, Ponticelli waited too long. Doorbal, supra, does not compel a different result. Unlike that case, Ponticelli s counsel had obviously undertaken significant research into this case before the successive motion to vacate was filed in May of 2007. And, explicit in the Doorbal decision is the holding that the motion to disqualify in that case was timely because it was filed within ten (10) days after counsel filed notice of appearance. In contrast, Ponticelli s motion to disqualify was filed some six (6) months after the successive motion was filed. The fact that a state judge testified in an unrelated federal court hearing is certainly more obscure than the fact that Sarah Ritterhoff Williams became a judge five (5) months before the successive motion was filed. If the motion in Doorbal was timely, and this Court held that it was, then Ponticelli s motion is untimely under the same rationale. 7 7 In order to find Ponticelli s motion timely, it is necessary to accept that he did not know that Judge Ritterhoff Williams was a judge until shortly before the time set for the evidentiary hearing. To accept this claim, it is, in turn, necessary to accept that even though Judge Ritterhoff Williams was listed as a witness and her address and telephone number given as her chambers in the Courthouse, counsel did not realize that she was a judge until a very few days prior to the hearing. That reasoning does not withstand the slightest scrutiny since every possible source of the address given for 7
With respect to the December 8, 2007, motion to disqualify (which is addressed on pages 20-23 of the petition), the petition is untimely. That motion to disqualify (Ponticelli s third) was denied on December 20, 2007. Attachment 1. No motion for rehearing was filed, and any petition for review of that order should have been filed no later than January 21, 2008. This petition is untimely as to that motion. Finally, without waiving the untimeliness of the November 27, 2007, motion to disqualify, the mere fact that Judge Ritterhoff Williams may be a witness is a legally insufficient basis for granting a motion to disqualify. Mungin v. State, 932 So. 2d 986, 994 (Fla. 2006). And, the fact that other courts may have granted such motions has no precedential effect. The motion to disqualify was properly denied. Respectfully submitted, BILL McCOLLUM ATTORNEY GENERAL KENNETH S. NUNNELLEY SENIOR ASSISTANT ATTORNEY GENERAL Florida Bar #0998818 444 Seabreeze Blvd., 5th Floor Daytona Beach, Florida 32118 (386) 238-4990 Fax No. (386) 226-0457 Judge Ritterhoff Williams indicates that she is a County Court judge. 8
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above has been furnished by U.S. Mail to Linda McDermott, Esquire, McClain & McDermott, P.A., 141 N. E. 30th Street, Wilton Manors, Florida 33334, this 26th day of February, 2008. Of Counsel 9