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Cagle v. State

District Court of Appeal of Florida, Second District
Jul 19, 2002
821 So. 2d 443 (Fla. Dist. Ct. App. 2002)

Summary

holding that the trial court committed fundamental error by calling and examining its own witness at defendant's revocation of probation hearing

Summary of this case from Smith v. State

Opinion

No. 2D00-1403.

July 19, 2002.

Appeal from the Circuit Court, Hillsborough County, Robert J. Simms, J.

James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.


Frederick Cagle appeals the order revoking his probation. He raises several issues, but we need only address his contention, with which the State and we agree, that he was deprived of due process by the trial court's failure to act as a neutral and detached magistrate.

[1] At the revocation of probation hearing, defense counsel announced that Cagle was going to enter an open plea to one of the several allegations of violation of probation. After questioning Cagle about the circumstances surrounding the violation, the trial court announced that it was rejecting any plea negotiations and was going to conduct a hearing. The court itself then proceeded to call one of the victims, swear her as a witness, and question her about the circumstances surrounding the offenses Cagle was alleged to have committed against her. Upon concluding its questioning of this victim, the court asked defense counsel if he had any questions for her, but counsel did not. The court then asked the State if it had any testimony it wanted to present, and the State said it wanted to call the other victim. The court called that victim, swore him as a witness, and questioned him itself. When the court attempted to pass the witness to the defense, the State asserted that it had further questions for that witness. After defense counsel cross-examined this witness, the court asked the probation officer several questions without swearing him as a witness. The State asserted it had another witness to call, and the court again questioned this witness before allowing the State to do so.

[2, 3] A trial court may conduct probation revocation proceedings in an informal manner and it may question witnesses, but it may not assume the role of the prosecutor. Edwards v. State, 807 So.2d 762, 763 (Fla. 2d DCA 2002). Doing so deprives the defendant of the fair and impartial tribunal which is the cornerstone of due process. See Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Such conduct amounts to fundamental error that may be raised for the first time on appeal. See Sparks v. State, 740 So.2d 33 (Fla. 1st DCA 1999).

Accordingly, we reverse for a new revocation hearing before a different trial judge.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ. Concur.


Summaries of

Cagle v. State

District Court of Appeal of Florida, Second District
Jul 19, 2002
821 So. 2d 443 (Fla. Dist. Ct. App. 2002)

holding that the trial court committed fundamental error by calling and examining its own witness at defendant's revocation of probation hearing

Summary of this case from Smith v. State

reversing "for a new revocation hearing before a different trial judge" where trial judge had, inter alia, posed "questions without swearing . . . witness"

Summary of this case from Edgel v. State

In Cagle, the court reversed a revocation order where the trial court essentially took over the prosecutor's job of calling and questioning witnesses.

Summary of this case from Lee v. State
Case details for

Cagle v. State

Case Details

Full title:FREDERICK CAGLE, Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Jul 19, 2002

Citations

821 So. 2d 443 (Fla. Dist. Ct. App. 2002)

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