Masten v. State, ___ So. 3d ___, 40 Fla. L. Weekly D714 (Fla. 3d DCA March 20, 2015)
The appellate court granted the defendant’s petition for writ of prohibition from an order denying his motion to disqualify the trial judge. When the defendant appealed from an order denying a motion for stay of his sentence for violation of probation, the trial judge sent an email to the Attorney General’s Office to assist in opposing the appeal. Subsequent emails from the judge’s chambers attached documents and transcripts. When the Attorney General’s Office disclosed the emails, the defendant moved to disqualify the trial judge, who denied the motion. The defendant responded by filing a petition for writ of prohibition, which the appellate court granted because the judge’s emails constituted improper ex parte communications, and the judge compounded the problem by submitting a response to the petition for writ of prohibition reflecting that the judge “held both a personal interest in the appeal of the stay and an expectation the Attorney General’s Office would represent ‘her interest’ in the appeal. ‘In a prohibition proceeding . . . it is the safer practice for the judge to remain silent and let the adversarial party supply the response.” Under the circumstances of this case, the defendant was justified in fearing that he would not receive a fair and impartial trial.
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