CRIMINAL LAW: POST CONVICTION PROCEEDINGS; JUDGES: DISQUALIFICATION: MOTION FOR DISQUALIFICATION MADE WHILE DEFENDANT HAD NO PENDING CASES BEFORE THE COURT WAS VOID AB INITIO; APPEALS: PROHIBITION  

Nilio v. State, ___ So. 3d ___, 39 Fla. L. Weekly D1336 (Fla. 1st DCA June 25, 2014)

“[The defendant] filed a motion to disqualify the trial judge from presiding over further postconviction proceedings. At the time the motion was filed, [the defendant] had no pending cases before the trial court, although he later filed [a motion to correct, modify, or vacate his sentence].”  When the trial judge failed, within thirty days, to rule on the motion for disqualification, the defendant filed a petition for writ of prohibition, arguing that automatic disqualification was required under Fla. R. Jud. Admin. 2.330(j).  The appellate court denied the petition, holding that the motion for disqualification was void ab initio because it was filed “when the trial court’s jurisdiction had not been invoked for any other purpose.”  As a result, the trial court was not required to rule on the motion.