Supreme Court of Florida

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No. SC2022-1732

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RANDY W. TUNDIDOR,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

April 13, 2023

PER CURIAM.

Randy W. Tundidor, a prisoner under sentence of death, has 

filed a petition seeking review of a nonfinal order denying his 

motion to disqualify the judge assigned to preside over his 

postconviction proceedings, which we treat as a petition for a writ of 

prohibition. We have jurisdiction. See art. V, § 3(b)(7), Fla. Const.

I. BACKGROUND

Tundidor has been convicted of first-degree murder and 

sentenced to death. In 2019, he filed an initial “Motion to Vacate 

Judgments of Conviction and Sentence With Special Request For 
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Leave To Amend,” which is currently pending an amendment in the 

trial court. Judge Elizabeth Scherer is assigned to preside over 

Tundidor’s postconviction proceedings.

On November 21, 2022, Tundidor filed a motion to disqualify 

Judge Scherer “due to the appearance of impropriety and actual 

bias.” Judge Scherer recently presided over the capital trial 

proceedings of Nikolas Cruz, who is widely known for killing 

seventeen people at Marjory Stoneman Douglas High School in 

Parkland, Florida, on February 14, 2018. In his motion, Tundidor

alleged that Judge Scherer was accused of conduct in the Cruz case

that has been viewed as exhibiting bias against the defense and 

defense counsel, and which was widely reported in local, national, 

and international press, and streamed live on social media. 

Specifically, Tundidor alleged that during Cruz’s sentencing hearing 

on November 1, 2022, Judge Scherer engaged in heated exchanges 

with Cruz’s defense team, during which she accused a member of 

threatening her children and told two members to “go sit down.”

Tundidor further alleged that on November 2, 2022, immediately 

after sentencing Cruz, Judge Scherer left the bench and, while still 

in her judicial robe, exchanged hugs with the victims’ families and
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members of the prosecution team, one of whom was Assistant State 

Attorney Steven Klinger, who is also the prosecutor in Tundidor’s 

case. Tundidor also alleged that while off the record at a status 

hearing in Tundidor’s case on November 4, 2022, Judge Scherer

“sympathetically” asked ASA Klinger how he was doing. According 

to Tundidor, “Klinger responded to the effect that ‘words cannot

describe’ how he felt” and that “he was doing better than his 

mother,” “ ‘who follows the news.’ ” Tundidor’s motion stated that 

although neither Judge Scherer nor ASA Klinger mentioned the 

Cruz case explicitly at the November 4 hearing, “given the 

circumstances and events of the previous two days and ASA 

Klinger’s reference to ‘the news,’ counsel verily believes that Judge 

Scherer and Mr. Klinger were commiserating over their shared 

disappointment at the outcome of that case.” Based on these 

occurrences, Tundidor wrote:

The circumstances of this case are of such a nature 

that they are sufficient to warrant an objectively 

reasonable fear on Mr. Tundidor’s part that he would not 

receive a fair hearing before Judge Scherer. Suarez v. 

Dugger, 527 So. 2d 190, 192 (Fla. 1988). Judge

Scherer’s conduct, both at the Cruz proceedings and that 

witnessed at the November 4 hearing in Mr. Tundidor’s 

case, raises the appearance of impropriety and/or actual 

bias in favor of the State. Judge Scherer’s hugging the 
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Assistant State Attorney prosecuting Mr. Tundidor, and 

then commiserating with that same prosecutor at a 

hearing in Mr. Tundidor’s case, shows that she shares a 

special relationship with the prosecutor and bias in favor 

of the State. Under the facts stated in this motion, any 

capital defendant would have an objectively, wellfounded, reasonable fear that he would not receive a fair 

hearing. Mr. Tundidor reasonably fears that he cannot

receive a fair hearing before Judge Scherer.

Judge Scherer denied Tundidor’s motion to disqualify on 

November 28, 2022, stating summarily that the allegations 

contained therein were legally insufficient to merit disqualification. 

On December 15, 2022, Tundidor sought relief from that order by 

filing the instant petition in this Court.

As an initial matter, we treat Tundidor’s petition as one for a 

writ of prohibition, which is “the proper avenue for immediate 

review of whether a motion to disqualify a trial judge has been 

correctly denied.” Sutton v. State, 975 So. 2d 1073, 1076 (Fla. 

2008) (citing Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) (“Once 

a basis for disqualification has been established, prohibition is both 

an appropriate and necessary remedy.”)).

Florida Rule of General Practice and Judicial Administration 

2.330 sets forth the grounds for a motion to disqualify and states, 

in relevant part, that 
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[a] motion to disqualify shall set forth all specific and 

material facts upon which the judge’s impartiality might 

reasonably be questioned, including but not limited to

the following circumstances:

(1) the party reasonably fears that he or she will not 

receive a fair trial or hearing because of specifically 

described prejudice or bias of the judge[.]

Fla. R. Gen. Prac. & Jud. Admin. 2.330(e)(1). “The judge against 

whom an initial motion to disqualify under subdivision (e) is 

directed may determine only the legal sufficiency of the motion and 

shall not pass on the truth of the facts alleged.” Fla. R. Gen. Prac. 

& Jud. Admin. 2.330(h). “If the motion is legally sufficient, the 

judge shall immediately enter an order granting disqualification and 

proceed no further in the action.” Id. “The standard for 

determining the legal sufficiency of a motion to disqualify is whether 

the facts alleged, which must be assumed to be true, ‘would place a 

reasonably prudent person in fear of not receiving a fair and 

impartial trial.’ ” L. Offs. of Herssein & Herssein, P.A. v. United 

Servs. Auto. Ass’n, 271 So. 3d 889, 894 (Fla. 2018) (quoting

MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1335 

(Fla. 1990)). “Actual bias or prejudice need not be shown, rather it 

is the appearance of bias or prejudice which requires 
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disqualification.” State v. Oliu, 183 So. 3d 1161, 1163 (Fla. 3d DCA 

2016). “A mere ‘subjective fear[ ]’ of bias [or prejudice] will not be 

legally sufficient; rather, the fear must be objectively reasonable.” 

Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (first alteration in 

original) (quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)).

“The standard of review of a trial judge’s determination on a motion 

to disqualify is de novo.” Parker v. State, 3 So. 3d 974, 982 (Fla. 

2009).

Tundidor asserted in his motion that Judge Scherer’s conduct

at the Cruz proceedings and that was witnessed by Tundidor at the 

November 4, 2022, hearing in his own case, raises the appearance 

of actual bias in favor of the State and would leave any capital 

defendant, including himself, with an objective, well-founded, and

reasonable fear that he would not receive a fair hearing before 

Judge Scherer. The law does not require Tundidor to show that 

Judge Scherer is actually biased or unable to be impartial. Rather,

“[t]he question of disqualification focuses on those matters from 

which a litigant may reasonably question a judge’s impartiality 

rather than the judge’s perception of his ability to act fairly and 

impartially.” Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).
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We conclude that the combination of certain circumstances 

contained in the allegations in Tundidor’s motion regarding the

actions of Judge Scherer in the Cruz case on November 2, 2022, 

and in Tundidor’s case on November 4, 2022, which he alleged 

showed a sympathy with the State that was linked to the outcome 

of another capital case, would create in a reasonably prudent 

person a well-founded fear of not receiving a fair and impartial 

proceeding. The crucial facts that together were sufficient to create

such a well-founded fear are the hugging of ASA Klinger by Judge 

Scherer—in the court room while still wearing a robe—at the 

conclusion of the Cruz murder case, and the personal exchange 

between Judge Scherer and ASA Klinger two days later, during 

Tundidor’s postconviction proceedings, in which the judge 

commiserated with Klinger.

Because Tundidor’s motion provided a legally sufficient basis 

for disqualification, the trial court erred in denying it. We therefore 

quash the order denying it, grant a writ of prohibition, and direct

the circuit court to reassign Tundidor’s case.

It is so ordered.
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MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS, 

and FRANCIS, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Broward County

Elizabeth Scherer, Judge

Case No. 062010CF006496A88810

Suzanne Keffer, Capital Collateral Regional Counsel, Paul Kalil, 

Assistant Capital Collateral Regional Counsel, and Courtney 

Hammer, Staff Attorney, Southern Region, Fort Lauderdale, Florida,

for Petitioner

Ashley Moody, Attorney General, Tallahassee, Florida, and Leslie T. 

Campbell, Senior Assistant Attorney General, West Palm Beach, 

Florida,

for Respondent