DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHNELL DAYTHWON LANG,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Nos. 4D16-2545 & 4D16-2546 

[October 25, 2017]

Consolidated appeals from the Circuit Court for the Fifteenth Judicial 

Circuit, Palm Beach County; Jack Schramm Cox, Judge; L.T. Case Nos. 

502010CF011286AMB & 502010CF011287AMB.

Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. 

Comras, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant challenges the revocation of his probation in two criminal 

cases, contending that the trial judge departed from a position of neutrality 

when he conducted an independent investigation of a prior charge not 

offered by the State in its case. The judge used that information in 

evaluating the credibility of the witnesses. Because he departed from a 

position of neutrality, the judge did not afford appellant his due process 

right to an impartial magistrate. We therefore reverse and remand for

proceedings before another judge. 

Appellant was sentenced to prison time followed by probation for three

crimes in two separate cases: lewd and lascivious battery on a person 

older than twelve, but less than sixteen, aggravated battery, and sexual 

battery of a person twelve years of age or older. After his release from 

prison, he violated his probation twice and was reinstated each time, after 

serving some time in jail. His probation officer filed a third violation of 

probation affidavit, which is the subject of this appeal, for an incident of 

indecent exposure which allegedly occurred while appellant was 
2

incarcerated for the second violation of probation. Appellant was accused 

of exposing himself to a female jail deputy. 

The female deputy testified at the violation hearing that she had worked 

for the Palm Beach County Sheriff’s office for twenty-eight years. On the 

date in question, she was assigned to the jail’s male dorm in which 

appellant was housed. The female deputy knew appellant and had 

supervised appellant on other occasions. As she was completing her 

duties, she saw appellant looking at her and stroking his penis. She 

approached appellant and he immediately put his penis back in his pants. 

She wrote up a report on the incident, which led to the filing of the affidavit 

of violation of probation.

After the deputy’s testimony, the State asked the judge to take notice 

of the “clerk’s file,” to which the defense did not object. The judge queried 

the state as to what specifically the state was requesting the court to 

review, and the prosecutor designated the prior violations of probation and 

the orders reinstating probation. The defense objected to anything 

regarding the prior violations, because they were not relevant to whether 

appellant violated probation in this incident. Appellant’s probation officer 

then testified to his supervision of appellant and the filing of the affidavit 

of violation for the exposure incident. 

Appellant testified in his defense. A few days before the incident 

charged in the violation of probation, appellant had asked for supplies 

from the deputy, and she became aggravated with him, telling him that he 

would end up in jail again. On the date of the incident, appellant again 

asked the deputy for supplies, and she became aggravated again, telling 

appellant that he was doing it on purpose. She told him not to get off of 

his bed. He disobeyed her and went to the TV room. She entered the room 

and told him to pack his stuff, stating he didn’t listen and she would get 

him out of her dorm. Appellant denied putting his hands in his pants or 

exposing himself. During the five years he was previously in prison, he 

never received a disciplinary report for anything like indecent exposure. 

The prosecutor did not attempt to impeach appellant on his testimony.

The prosecutor and the defense counsel both presented closing 

arguments. After the arguments were complete, the judge decided to pull 

up the appellant’s criminal record in the clerk’s database. He again asked 

the prosecutor which documents she wanted the court to see. Both the 

prosecutor and defense focused on the prior violations of probation and 

the orders reinstating probation, and the defense again objected on 

relevance grounds. The judge determined that he wanted to look at the 

clerk’s file, because he found it hard to believe that the deputy would lie 

and risk her job by committing perjury, if the incident never happened.
3

The judge then asked whether there were any prior charges of indecent 

exposure. The prosecutor informed the judge that none of the prior 

violations of probation involved sexual matters, as they were all technical 

violations. Reviewing the clerk’s complete database for appellant, the 

judge noted a closed misdemeanor case from 2011 for indecent exposure. 

The prosecutor indicated the case involved the deputy and appellant in the 

jail in “a different set of circumstances,” and the defense objected that the 

information was outside the record and testimony. The judge overruled 

the objection, stating he was “kind of interested in knowing what that was” 

and suggesting the case was relevant to the “ongoing dispute” between 

appellant and the deputy. While the clerk noted that the charge was nolle 

prossed, the judge wanted to look at the probable cause affidavit, which 

the State was able to secure. In the prior incident, the deputy had reported 

that while in jail appellant had masturbated while staring at her. After 

reviewing the affidavit, the court noted “this is almost an identical 

situation.” The judge commented that he would use the case to determine 

if it was more probable that the deputy or appellant was lying. Given that 

the indecent exposure had happened twice, the judge found that the 

deputy was more credible and that appellant had committed a willful 

violation of probation. 

At sentencing, the state requested that the court revoke appellant’s 

probation and sentence him to 8.8 years. The defense asked for 

reinstatement of probation. The judge again asked about the nolle prossed 

misdemeanor. He then revoked appellant’s probation and sentenced him 

to ten year concurrent terms on the underlying criminal convictions, with 

credit for time served, from which orders appellant appeals.

“[E]very litigant is entitled to nothing less than the cold neutrality of an 

impartial judge,” especially when the judge acts as the finder of fact. State 

ex rel. Davis v. Parks, 194 So. 613, 615 (Fla. 1939); McFadden v. State, 

732 So. 2d 1180, 1183, 1185 (Fla. 4th DCA 1999). The Due Process 

Clause entitles a defendant to a neutral and detached tribunal in a VOP 

hearing. Sears v. State, 889 So. 2d 956, 959 (Fla. 5th DCA 2004).

In J.F. v. State, 718 So. 2d 251, 252 (Fla. 4th DCA 1998), we held that 

a trial court departed from a position of neutrality by insisting on the 

presentation of fingerprint testing which was not ready nor requested by 

the state to be presented at trial. We explained,

While is it permissible for a trial judge to ask questions 

deemed necessary to clear up uncertainties as to issues in 

cases that appear to require it, the trial court departs from a 

position of neutrality, which is necessary to the proper 
4

functioning of the judicial system, when it sua sponte orders 

the production of evidence that the state itself never sought to 

offer into evidence.

Id. (citations omitted). This case is similar to J.F. After the close of the 

trial, the court sought to review appellant’s entire record and discovered a 

misdemeanor conviction. The misdemeanor was not one of the charges 

resulting in the previous violations of probation, nor did the State ever 

seek to use it to impeach the appellant. The defense objected to the judge’s 

consideration of the misdemeanor, because it was beyond the evidence in 

the case. Nevertheless, the trial judge persisted in seeking information 

about the prior nolle prossed misdemeanor. Just as in J.F., the judge 

sought the production of evidence which the state never sought to offer 

into evidence. The judge departed from a position of neutrality, depriving 

appellant of his due process right.

While the state now argues that the 2011 misdemeanor somehow was 

part of the “clerk’s file,” for which it sought judicial notice at the beginning 

of the trial, it is clear that the state’s request for the judge to review the 

court file meant the file of the underlying criminal offenses on which prior 

violations of probation had been filed. The prosecutor never mentioned 

the 2011 incident, which was a separate charge and separate file, and did 

not request that the judge view it. See City of Sunrise v. Hinton, 569 So. 

2d 891, 891 (Fla. 4th DCA 1990) (noting a party must request the court to 

take notice of other proceedings); see Kelley v. Kelley, 75 So. 2d 191, 193 

(Fla. 1954) (“A court should not be required or permitted to browse 

amongst its own records . . . , where the object of the inquiry is to arrive 

at its own particular judgment in whole or in part on an extraneous record 

not introduced[.]”) (citations omitted.) 

The record is also abundantly clear that this evidence gathered by the 

judge was crucial to his credibility determinations, as well as the sentence 

he ultimately imposed. Because the judge acted as prosecutor in securing 

additional evidence and then using that evidence in his deliberation, the 

appellant was deprived of a neutral magistrate.

For the foregoing reasons, we reverse the revocation of probation and 

sentence and remand for new proceedings in front of a different trial judge.

DAMOORGIAN and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.