| [1] | SUPREME COURT OF FLORIDA. |
| [2] | |
| [3] | 1957.FL.40568 <http://www.versuslaw.com>; 97
So. 2d 181 |
| [4] | October 11, 1957 |
| [5] | CHARLES EDWARD CROSBY, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE. |
| [6] | C. J. Hardee, Sr., and Robert J. Fishkind, Tampa, for
appellant. |
| [7] | Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty.
Gen., for appellee. |
| [8] | Author: Knott |
| [9] | KNOTT, Circuit Judge. |
| [10] | On March 2, 1955, the County Solicitor of Hillsborough County,
Florida, filed a criminal information charging appellant
Crosby and one Lee R. Baker with attempted robbery.
Crosby entered a plea of guilty as charged in the
information and was adjudged guilty by the Honorable L. A. Grayson, the
Judge of the Criminal Court of Record. Sentence was deferred pending an
investigation by the court's probation officer. Baker pleaded not guilty,
a severance was granted and he was later placed on trial.
Crosby, who as yet had not been sentenced was subpoenaed as
a witness for both the State and the defense at Baker's trial. He was not
called as a witness by the State but did testify as a witness for the
defense at the trial on September 15, 1955, at which Judge Grayson
presided. The following proceedings transpired while Crosby
was on the witness stand: |
| [11] | "(Questions by Assistant County Solicitor McLean:) |
| [12] | "Q. Isn't it a fact that you, together with other juveniles, were
arrested out here in this Six Mile Creek Area and thereabouts, in recent
months, in connection with this Root Beer Gang that has been given too
much publicity in newspapers? A. Yes, sir, but I wasn't arrested as a
member of the Root Beer Gang. |
| [13] | "Q. As a matter of fact, they have taken out warrants for you for
fondling a little girl out there? Haven't they? |
| [14] | "Mr. Johnson: I object to all this, your Honor. He is coming in with
statements of arrest and I believe your Honor is allowing him to go beyond
the reasonable bounds of questioning here, when you are supposed to ask
questions pertaining to this particular case. |
| [15] | "The Court: Let the Jury be withdrawn. |
| [16] | "(The Jury was withdrawn.) |
| [17] | "The Court: In view of this witness's testimony I don't see why this
case should go along any further. If the jury were to convict this
defendant, I don't think I could let it stand. I don't see any use in
prolonging the agony here any more. |
| [18] | "Now, this witness may be lying and I don't know whether he is or not,
but, certainly, his testimony is more than adequate, in my judgment, to
cast a reasonable doubt on the guilt of the accused. I'm not going to go
along any further with it. I don't see any use to take up any more time in
cross-examination. I have heard all I want to know and when he goes off
the stand, I am instructing the Sheriff to take him into custody and hold
him without bond and bring him up for sentence next Monday. |
| [19] | "Mr. Clerk, in the morning, instruct the Probation Officer to
discontinue his investigation. I don't want to put a man like that on
probation. I am not going to waste any more time with him. |
| [20] | "Mr. Johnson: But, you are not, your Honor, punishing this man for
telling the truth, are you? |
| [21] | "The Court: No, because I don't think he is telling the truth. I am
punishing him for telling a lie. The whole bunch of them. I think he is a
liar from the word 'go.' Bring back the jury. I'll stop the case. You are
not concerned with this fellow. |
| [22] | "(The Jury returned to the court room.) |
| [23] | "The Court: Gentlemen, after the cross-examination of this witness and
when the defendant would have rested his case, counsel would have renewed
his motion for a directed verdict, which has already been made and denied;
but, in the light of this testimony, I don't see how in the world you
could find the defendant guilty, or how I could allow it to stand if you
did. |
| [24] | "Now, you may think this fellow is the biggest liar in the world and
I'll go along with you. I think so, too. But, I think his testimony is
enough to cast sufficient doubt that an appellate court would not allow a
verdict of guilty to stand. I am going to take the case from you at this
time, direct a verdict of not guilty for the defendant. |
| [25] | "The most that can be said here, is a strong suspicion. This fellow is
being investigated for probation. He has told me enough about himself,
sitting right there under oath, to where I will never put him on
probation. So, I direct the Sheriff to take him into custody and put him
on for sentence next Monday on his guilty plea. |
| [26] | "You can take him out, Mr. Sheriff, and put him in the
cooler." |
| [27] | After Baker's trial, Crosby (hereinafter referred to as
the defendant) filed affidavit and application for disqualification of
Judge Grayson, with supporting affidavits, pursuant to Sec. 38.10, F.S.,
F.S.A., citing the statements made by the latter concerning the defendant
during Baker's trial, referred to above, as a basis for his fear that he
would not receive a fair trial at the hands of Judge Grayson and his
contention that Judge Grayson was prejudiced against defendant and
disqualified to sit as a fair and impartial Judge in any future
proceedings in the defendant's case. At the same time, defendant filed a
motion to withdraw his plea of guilty and for permission to plead not
guilty, asserting that he had a meritorious defense. In support of that
motion, defendant alleged that he had been reluctantly persuaded to enter
the guilty plea by his attorney on assurance that he would be placed on
probation, upon representations allegedly made to his attorney by the
county solicitor's office, whereas if he went to trial he would probably
be convicted and receive a penitentiary sentence, even if not
guilty. |
| [28] | The court entered orders denying the defendant's application for
disqualification and his motion to withdraw his plea of guilty, and
thereupon sentenced the defendant to three years'
imprisonment. |
| [29] | We are called upon initially to determine whether the Judge of the
lower court erred in refusing to disqualify himself. We think error was
committed. |
| [30] | The statute, Sec. 38.10, supra, requires the affidavit to state such
facts as cause the movant to "fear" that he will not receive a fair trial
because of prejudice on the part of the judge. The facts set forth in the
affidavit here under consideration are sufficient for that purpose under
the interpretation of the statute given in State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697,
115 A.L.R. 857, where we said, "the test of the sufficiency of the
affidavit is whether or not its content shows that the party making it has
a well-grounded fear that he will not receive a fair trial at the hands of
the judge. It is not a question of how the judge feels; it is a question
of what feeling resides in the affiant's mind, and the basis for such
feeling." |
| [31] | In applying the test, the function of the trial court is limited to a
determination of the legal sufficiency of the affidavit, without reference
to its truth and veracity. If the allegations are sufficient, the judge
must retire from the case. Dickenson v. Parks, 104 Fla. 577, 140 So. 459. |
| [32] | It is our conclusion that the affidavit suggesting the
disqualification of the trial judge in the case before us shows plainly
that he should have recused himself and not participated further in the
case. The language of this court in State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615,
is peculiarly apropos in the present instance. There we
said: |
| [33] | "This Court is committed to the doctrine that every litigant is
entitled to nothing less than the cold neutrality of an impartial judge.
It is the duty of Courts to scrupulously guard this right and to refrain
from attempting to exercise jurisdiction in any matter where his
qualification to do so is seriously brought in question. The exercise of
any other policy tends to discredit the judiciary and shadow the
administration of justice. |
| [34] | "It is not enough for a judge to assert that he is free from
prejudice. His mien and the reflex from his court room speak louder than
he can declaim on this point. If he fails through these avenues to reflect
justice and square dealing, his usefulness is destroyed. The attitude of
the judge and the atmosphere of the court room should indeed be such that
no matter what charge is lodged against a litigant or what cause he is
called on to litigate, he can approach the bar with every assurance that
he is in a forum where the judicial ermine is everything that it typifies,
purity and justice. The guaranty of a fair and impartial trial can mean
nothing less than this." |
| [35] | We hold that the trial judge should have disqualified himself, and
declined to proceed further in the case. It follows that he was without
authority to act upon the defendant's motion to withdraw his plea of
guilty, and his ruling on that motion was erroneous for that reason. We
are constrained to observe, however, that the grounds of the motion to
withdraw the plea of guilty were sufficient in any event to justify the
relief sought, under the principles followed by this court in the case of
Rubenstein v. State, Fla., 50 So.2d 708, and the
cases therein cited. |
| [36] | The judgment and sentence below are reversed, and the cause remanded
with directions to proceed in a manner consistent with the views set forth
in this opinion. |
| [37] | ROBERTS, DREW and O'CONNELL, JJ., concur. |
| [38] | THOMAS, Acting C.J., and THORNAL, J.,
dissent. |