Opinion
No. SC12–1628.
2012-11-30
Jacob John DOUGAN, Jr., Petitioner(s) v. STATE of Florida, Respondent(s).
Jacob John Dougan, Jr., a prisoner under sentence of death, has filed a Petition for Writ of Prohibition. We have jurisdiction. SeeArt. V, § 3(b)(7), Fla. Const. In the petition, Dougan seeks review of the trial court's order denying his motion to disqualify the trial judge in his postconviction proceeding below.
As a preliminary matter, Dougan contends that this is his initial motion for disqualification. However, a review of the record indicates that, in October 2002, Dougan filed a “Motion to Recuse Presiding Judge” that was “pursuant to Rule 2.160, Judicial Administration Rules.” Rule 2.160 was renumbered as Rule 2.330 in 2006 and remains substantively the same. See In re Amends. to the Fla. Rules of Jud. Admin.—Reorganization of the Rules, 939 So.2d 966, 1003–04 (Fla.2006). On October 30, 2002, the trial court entered an order granting Dougan's motion. Accordingly, this is not Dougan's initial motion, but is instead a successive motion pursuant to Florida Rule of Judicial Administration 2.330(g).
Florida Rule of Judicial Administration 2.330 governs the disqualification of trial judges. The rule provides that “[t]he judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” Fla. R. Jud. Admin. 2.330(f). “Whether the motion is legally sufficient 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).
However, the rule provides that, “[i]f a judge has been previously disqualified on motion for alleged prejudice or partiality ... a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.” Fla. R. Jud. Admin. 2.330(g). We have held that the “more stringent” standard of review when evaluating an order denying a successive motion is “whether the record clearly refutes the successor judge's decision to deny the motion.” Kokal v. State, 901 So.2d 766, 774 (Fla.2005) (quoting Pinfield v. State, 710 So.2d 201, 202 (Fla. 5th DCA 1998)).
Dougan seeks disqualification of the trial judge, asserting that the judge will be biased because the state attorney in this case prosecuted an individual who sent the judge a threatening e-mail in 2003. Dougan's postconviction proceeding has been pending since 1994, and the current judge is the sixth judge to preside over the case. The alleged event on which Dougan bases his claim occurred in 2003 and there is insufficient evidence in the record to suggest that the judge, as a result of her previous interactions with the state attorney, will not be fair or impartial in Dougan's case. We conclude that Dougan's allegations of impartiality do not rise to the level of “clearly refut [ing] the successor judge's decision to deny the motion.” Id. Accordingly, we deny Dougan's petition.
It is so ordered.