Can I get a new judge on my case?

September 26, 2012

Clients and the lawyers that represent them should never be placed in a situation that causes them to fear retaliation from the presiding judge if they ask for a recusal. The Florida Supreme Court issued an opinion in August of 2012 in Case Number SC10-348 reprimanding a Broward County trial court judge for the manner in which he handled a recusal motion filed by one of the attorneys.

Under Florida law, a person who has a pending criminal case or a civil case has the right to ask for a new judge be appointed under certain circumstances. The rule governing the request for the appointment of a new judge is 2.330(f) of the Florida Rules of Judicial Administration. The rule is long but has some basic requirements. Generally, they are:

The Procedure to Request Disqualification:
1. The Motion must be in writing to the court.
2. The Motion must specifically describe the reasons why the person asking for a new judge feels the present judge might have a conflict or bias.
3. The Motion must be signed under oath, like a notarized affidavit, by the person asking for a new judge.
4. The Motion list any other previous motions and the date they were filed to disqualify the judge in that particular case.
5. The Motion must be signed under oath, in the style of an affidavit, that the Motion is being made in good faith. That is, it's being made for a genuine reason.
6. The Motion must be filed with the Clerk and a copy delivered to the judge.
7. The Motion must be filed within 10 days of the discovery of the potential bias, prejudice or conflict of interest. If the bias is discovered during the course of a hearing or trial, an oral motion must be made immediately and then filed in writing as soon as possible. A judge is supposed to rule on a conflict discovered in a trial or hearing right away.
8. A Motion filed before a trial or hearing should be ruled on within 30 days. If the judge does not rule, it is deemed to be granted after that time.

Generally acceptable reasons to ask for a new judge:
1. The moving party feels they cant receive a fair trial with that judge sitting on the case. You must describe in detail the reasons you fear bias or prejudice from that judge
2. That the judge is somehow related to a party, lawyer, a material witness or to someone that has an interest in the outcome of the case. This is subject to the distance of the familial relationship.

In the first Motion filed, a judge is not supposed to make a finding on whether or not the allegations are true or not true. If a Motion has been filed before, the judge can then make a finding of whether the allegations in the Motion to Disqualify are true or not. The idea behind this rule is to keep parties or criminal defendants from shopping around for the best judge by asking for disqualifications.

The rules and case law on judge recusal are complicated. The decision to ask, or not to ask, for the removal of a judge from your case can have very serious consequences on your case. This article is just an introduction to the process. Be sure to consult with a skilled criminal lawyer to decide on your best course of action.