FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-1986

LT Case No. 2020-CF-1422

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DEVIN TOCCO,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

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Petition for Writ of Prohibition, 

Daniel B. Merritt, Jr., Respondent Judge.

Debra B. Tuomey, of Debra B. Tuomey, Attorney at Law, LLC, 

Weeki Wachee, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Allison Leigh 

Morris, Assistant Attorney General, Daytona Beach, for 

Respondent. 

October 27, 2023 

WALLIS, J.

Devin Tocco (Petitioner) seeks a writ of prohibition to 

disqualify the Honorable Daniel B. Merritt, Jr. from presiding over 

his criminal case following events at a pretrial hearing on May 11, 

2023. We find that Petitioner has established a well-founded fear 

that he will not receive a fair trial and grant the petition. 
2

Petitioner was charged with Driving While Under The 

Influence—Third Offense Within Ten Years and Reckless 

Driving. At three points during the litigation of this case, the 

parties approached the court with potential plea 

agreements. Each time, the judge rejected the proposed plea 

agreements. Petitioner subsequently moved to disqualify him 

from presiding over the case. The judge denied the motion as 

legally insufficient. 

As a result of those events, Petitioner filed with this Court a 

petition seeking a writ of prohibition in case number 5D23-

1454.1 While that case was pending before our Court, the May 11, 

2023, pretrial hearing was held before the trial judge. During that 

hearing, the judge took it upon himself to address Petitioner’s 

prohibition petition. Specifically, he commented that some 

relevant portions of the record had not been transmitted to this 

court. After some back and forth with each counsel in the case, the 

judge directed the assistant state attorney to supplement the 

record with this court with specific transcripts from prior hearings 

the judge deemed relevant to the prohibition proceeding.

After the May 11, 2023, hearing, Petitioner filed a second 

motion to disqualify the judge, arguing inter alia that he

improperly injected himself into the pending prohibition 

proceeding by directing the State to file transcripts. The judge

denied the second motion. Appellant thereafter filed the instant 

petition seeking a writ of prohibition directing the judge to 

disqualify himself from presiding over Petitioner’s criminal trial 

and sentencing.

We find Petitioner has established facts that would place a 

reasonably prudent person in fear of not receiving a fair and 

impartial trial. See Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 

1983). Specifically, instead of responding to the petition in this 

court as authorized by Rule 9.100, the judge attempted to

participate in the prohibition proceedings by directing the 

assistant state attorney to supplement the record in this court. We 

conclude that this type of extra-record involvement by the judge in 

1 That petition was denied by order of this Court dated May 

16, 2023.
3

the prohibition proceeding after rendition of the order denying the 

motion for disqualification is both unauthorized and would put a 

“reasonably prudent person in fear of not receiving a fair and 

impartial trial.” See Livingston, 441 So. 2d at 1087. 

In fairness, it appears the trial judge was attempting to 

“clarify the status of the record.” See Pilkington v. Pilkington, 182 

So. 3d 776, 780 (Fla. 5th DCA 2015) (“The judge may comment 

factually on what transpired during relevant proceedings when 

ruling upon a motion to disqualify.”); Niebla v. State, 832 So. 2d 

887, 888 (Fla. 3d DCA 2002) (holding trial court was “merely 

stating the status of the record” when denying motion to 

disqualify). But while this Court has recognized a trial judge’s 

authority to clarify the status of the record, we decline to extend 

that authority beyond rendition of the order denying the motion to 

disqualify.

 Accordingly, we grant the petition for writ of prohibition.

PETITION GRANTED; WRIT OF PROHIBITION ISSUED.

EISNAUGLE and MAKAR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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