# Supreme Court of Florida

____________ No. SC 20 22

- 1732

____________ 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 p etition s eeking r evie w of a n on fi n al o rder 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. BACKGR OUND
Tund idor has be en c onvicted of fi r st

- degree murder and
sentenced to death. In 2019, he filed an initial “ Motion to Vacate Judgments of Conviction and Sentence With Special Request For- 2

- Leave To Amend , ” which is currently pending an amend ment in the
tri al court

. Judge El iz abe th Scherer is assigned to preside over Tundidor ’ s postconviction proceeding s. On November 21, 2022, Tundidor filed a m otion t o d isqualify Judge Scherer “ due to the appearance of impropriety and actual
bias. ” Judge Schere r recentl y presided over the c api tal trial proceedi ngs of N i k olas Cruz , who is w idely known for killing
seventeen people at Ma r jory Stone man Douglas High School in Parkland, Florida , on February 14, 2018

. In his mot ion , Tundidor alleged that Judge Sch erer was accused of con duct i n t he C r uz case that has been viewed as exhibiting bias against the defense and
defense counsel , and which wa s widely reported in local, national, and international press , and streamed live on soc ial media. Specifically, T undi dor alleged that d uring Cruz ’ s s en ten cing hearing

on Nove mber 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 m embers to “go sit down .” Tundidor further alleged that o n Novem ber 2, 20 22 , i mmediately after sentencing Cruz, Judge Scherer left the bench and , while still in her judic ial r obe , exchanged hugs with the victims ’ families and- 3

- members of the prosecution team , one of who m was Assistant State Attorney Steven Klinger, who is also t he pr osecutor in Tundidor ’ s

case . Tundidor also alleged that while off the record a t a status hearing in Tundidor ’ s case on November 4, 2022 , Judge Scherer

“ sympathetically ” ask ed ASA Klinger how he was doing. A ccording to Tundidor, “ Klinger r es ponded to t he effect tha t ‘ words ca nnot
describe ’ how he felt ” and that “ he was doing better than his
moth er , ” “ ‘ who follows the new s . ’ ” Tundidor ’s motion stated that although n either Judge Scherer nor ASA Klinger mentioned the Cruz case explicitly a t t he Novemb er 4 hearing , “ given the circumstances and events of the prev ious two days and ASA Klinger’s reference to ‘ the news , ’ counsel verily believes that Judge Scherer and Mr. Klinger were commiserating over their s hared disappointment at the outcome of that case

. ” B ased on these

occurrences , Tundido r wrote: The circumstances of this c ase 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 Sch erer. Su ar ez v. Dugger , 527 So. 2d 190, 192 (Fla. 1988). Judge Scherer’s conduct, bo th at the Cruz proceedings and that witnessed at the November 4 hearing in Mr. Tundidor’s case, raises the appearance of impropriet y and/or actual bias in favor of the St ate. Jud ge Sc herer’s hugging the- 4

- Assistant State Attorney prosecuting Mr. Tundidor, an d then commiserating with that same prosecutor at a hearing in Mr. Tundidor’s case, shows that she shares a special relationship w ith the prosecutor and bias in favor of the Stat e. U nder the facts stated in this motion, any capital defendant would have an objectively, well

founded, reasonable fear that he would not receive a fair hearing. Mr. T undidor reasonably fears that he canno t receive a fair hearing before Judge S cherer. J ud ge Scherer denied Tundidor ’ s motion to disqualify on
N ovembe r 28, 2022, stating summarily that t he allegations
contained therein were legally insufficient to merit dis qualificatio n . On December 15, 2022, T undidor sought relief from that order b y f

iling th e i nstant petition in this Cou r t

. As an initi al matter, we treat Tundidor ’ s petition as one fo r a writ of prohibitio n , which is “ the proper avenue for immediate review of whether a motion to disqualify a trial judge has been

correc tly denied. ” S utton v. S tat e , 975 So. 2d 1073, 1076 (Fla. 2008) (citin g Bundy v. Rudd , 366 So. 2d 440, 442 (Fla. 1978) ( “ Once
a ba sis for disqualification has been established, prohibition is both

an appropriate and necessary remedy. ” ) )

. Fl orida R ule of General Practic e an d Jud i ci al Admin istration
2

. 330 sets forth the grou nds for a motion to disqualify and states,
in rele vant part, that- 5

- [a] motion to di squalify shall set forth all specific and material facts upon which the judge ’ s impartiality might reasonably be quest ioned, in c luding but not limit ed to the foll owing circ umstances: (1) the party reasonably fears that he or she will not receive a fair tri al or hearing because of specifically described prejudice or bias of the judge [.] Fla. R. Gen. Prac. & Jud. Admin. 2. 3 30 (e) (1)

. “ T he judge against
whom an initi al mo tion to disqualify under subdivision (e) is directed may determin e only the legal sufficiency of the mo tion and shall not pass on the truth of the facts alleged. ” Fla. R. Gen. Prac.
& Jud. Admin. 2. 330 ( h). “ If the m o tion is legally sufficient, the judge shall im me dia tely enter an order granting disqualification and proceed no further in the action. ” Id. “T he standar d for determining the legal sufficiency of a motion to disqualify is whether the facts alleg ed, which must be assumed to be true , ‘would place a

rea so nab ly prudent person in fear of not receiving a fair and impartial trial.’ ” L . Offs. of Herssein & Herss ein, P.A. v. United
Servs. Auto. Ass ’ n , 271 So. 3d 889, 89 4 (Fla. 2018) (q uoting
MacKenzie v . Super K i ds Bargain Store, Inc. , 565 So. 2d 1332, 1335 (F la. 1990)). “Actual bias or prejudice need not be shown, rather it is the appearance of bias or prejudice which requires- 6

- disqualification.” State v. Oliu , 183 So. 3d 1161, 1163 (Fl a. 3d DCA 2016). “A mere ‘subjective fear[ ]’ of bias [or prejudice] wi ll no t be legally su fficient; rather, the fear must be objectively reasonable.”
Arbelaez v. Sta te , 898 So. 2d 25, 41 (Fla. 2005) (first alteration in original) (quoting Fischer v. Knuck , 497 So. 2d 2 40, 242 ( F la. 1986) ).
“The standard of review of a tria l jud ge ’ s determination on a motion to disqualify is de novo.” Parker v. State , 3 So. 3d 974, 982 (Fla.
200 9 ).
T undidor as serted in hi s motion that Jud ge Scherer’s conduct at the Cruz proceedings and that w a s witnessed by Tundid or at the
November 4 , 202 2, hea rin g in his own case, raises the appearance
of actual bias in favor of the State and would leave any capital
defend ant, including himself , with an objective , well

- founded, and
reasonable fear that he wou l d not receive a fair hearing before Judge Sche re r. 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 litiga nt may r easonably question a judge’s impartiality
rath er tha n t he judge’s perception of his ability to act fairly and impartially.” Livingston v. State , 441 So. 2d 1083, 1086 (Fla. 1983)

.- 7

- We conclude that the combination of certain circumstances
contained in t h e allegations in Tundid or ’s motion regarding t he
act ion s of Judge Scherer in the Cruz case on November 2, 202 2,
and in Tundidor ’s case on November 4 , 20 22, which he alleged showed a sympat hy with the State that was linked to the outcome
of another ca pital case, would create in a reasonably prudent
per so n a well

- founded fe ar of not receiving a fa ir and im partial
p roceeding

. The crucial facts that together were sufficient to create
such a well

- founded fear are the hugging of ASA Klinger by Judge
Schere r

— in t he court room while still wearing a robe

— at th e

conc lusion of the Cruz murder case, and the p ersonal exchange
between Judge Scherer and ASA Klinger two days later, during
Tundidor’s post conviction proceedings, in which the judge
commiserated with Kli nger. Because Tundidor ’s motion provided a legally s uf fici ent basi s for disq ualificatio n , the trial court erred in denying it. We therefore
qua s h the order denying it , grant a writ of prohibition, and direct the circuit court to reassign Tundidor ’ s case . It i s so ordered.- 8

- 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.
A n Appeal from the Circuit Court in and for Broward County Elizabeth Sche rer, Judge Case No. 062010CF006496A88810
Suzanne Keffer , Capital Collateral Regional Counsel, Paul Kalil, Assistant Capital Collateral Regional Counsel, and Courtney Hammer, Staff Att or ney, Southern Region, Fort Lauderdale , Florida,
for Petitioner
Ashl ey Moody , Attorney General , Tallahassee, Florida, and Leslie T. Campbell, Senior Assistan t Attorney General , West Palm Beach , Florida,
for Respondent