WHITAKER v. STATE (1999)

District Court of Appeal of Florida,First District.

Samuel James WHITAKER, Appellant, v. STATE of Florida, Appellee.

No. 97-3934.

Decided: October 20, 1999

Nancy A. Daniels, Public Defender; and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General; Mark C. Menser, Assistant Attorney General, Tallahassee, for Appellee.

Samuel James Whitaker appeals his judgment and conviction for sale or delivery of cocaine. Whitaker raises four issues, two of which we find have merit. We find that Whitaker's motion to recuse was legally sufficient and that the trial court should have granted the motion. See Robbins v. Robbins, 742 So.2d 395 (Fla. 2d DCA 1999) (stating that the allegation that the ex-wife socialized with the trial judge was legally sufficient to require recusal). Furthermore, we find that the trial court's sua sponte declaration that Officer Samuel Koivisto qualified as an expert witness constituted an improper comment on the credibility of the witness. See § 90.106, Fla. Stat. (1997); Fogelman v. State, 648 So.2d 214, 219 (Fla. 4th DCA 1994).

Accordingly, we reverse and remand for a new trial. The chief judge of the fourth judicial circuit shall assign another judge within the circuit to preside over the new trial.

PER CURIAM.

WEBSTER, DAVIS and VAN NORTWICK, JJ., CONCUR.

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