STATE v. THOMPSON (2012)

In State v. Thompson, 64 So.3d 1281 (Fla. 1st DCA 2011), this court reversed respondent's sentence and remanded to the Circuit Court for Clay County for resentencing with a statutorily-required 20 year mandatory minimum. On remand, Judge John Skinner directed the elected State Attorney for the Fourth Judicial Circuit to personally appear at the resentencing hearing. The state moved to disqualify Judge Skinner, asserting that his actions and comments in the case caused movant to fear that the judge was not fair and impartial in the cause. When the motion was denied, relief was sought from this court through a petition for extraordinary writ. The state requests that prohibition be granted and the disqualification of Judge Skinner be ordered. It also petitions for a writ of certiorari or quo warranto to review the order which directed the State Attorney's attendance at resentencing.

The facts alleged in the state's motion for judicial disqualification, taken as true as they must be under Florida Rule of Judicial Administration 2.330(f), would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). The motion was timely filed after the last in a series of actions by the judge that gave rise to such fear. See Dura–Stress v. Law, 634 So.2d 769 (Fla. 5th DCA 1994). We therefore grant the petition for writ of prohibition and direct Judge Skinner to enter an order of disqualification and requesting the Chief Circuit Judge to appoint a successor judge to preside over the resentencing hearing.

In accordance with Florida Rule of Judicial Administration 2.330(h), the State of Florida may request the successor judge to reconsider the order requiring the attendance of the State Attorney at resentencing. We therefore do not reach the correctness of that order. Our denial of certiorari and quo warranto relief at this time is without prejudice to the state's right to again petition this court for relief if reconsideration is denied.

PETITION FOR WRIT OF PROHIBITION GRANTED; PETITION FOR WRIT OF CERTIORARI OR QUO WARRANTO DENIED WITHOUT PREJUDICE.

PER CURIAM.

LEWIS, ROWE, and RAY, JJ., concur.