From Casetext: Smarter Legal Research

State v. Testa

District Court of Appeal of Florida, Third District
May 25, 1982
414 So. 2d 38 (Fla. Dist. Ct. App. 1982)

Summary

disapproving an affidavit filed by the trial judge refuting facts as an attachment to his return to the appellate court's rule nisi in prohibition

Summary of this case from Valltos v. State

Opinion

No. 82-837.

May 25, 1982.

David F. Cerf, Jr., Stephen Cahen, Miami, for petitioner.

Horton, Perse Ginsberg and Mallory H. Horton, Miami, for respondents.

Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.


The rule disqualifying a trial judge who attempts to refute charges of partiality and thus creates an intolerable atmosphere between himself and the litigant, see Bundy v. Rudd, 366 So.2d 440 (Fla. 1978); Management Corporation of America, Inc. v. Grossman, 396 So.2d 1169 (Fla. 3d DCA 1981), is no less applicable when, as here, the trial judge's refutation (which not only set forth his version of the context — "a climate of levity" — in which his remark, arguably prejudicial to the plaintiffs, was made, but, moreover, contradicted the alleged substance of the remark) comes in the form of an affidavit attached to his return to our rule nisi in prohibition.

Accordingly, we must grant the petition for writ of prohibition. We deem it unnecessary to issue the writ and remand the cause to the Circuit Court for further proceedings consistent with this opinion.


Summaries of

State v. Testa

District Court of Appeal of Florida, Third District
May 25, 1982
414 So. 2d 38 (Fla. Dist. Ct. App. 1982)

disapproving an affidavit filed by the trial judge refuting facts as an attachment to his return to the appellate court's rule nisi in prohibition

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

State v. Testa

Case Details

Full title:STATE OF FLORIDA EX REL. MARGARET H. ALLEN ON HER OWN BEHALF AND FOR THE…

Court:District Court of Appeal of Florida, Third District

Date published: May 25, 1982

Citations

414 So. 2d 38 (Fla. Dist. Ct. App. 1982)

Citing Cases

Valltos v. State

This principle applies with equal force to a response filed in a prohibition proceeding in the appellate…

Melbourne, Inc. v. Jackson

"When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to…