# Third District Court of Appeal

State of Florida

Opinion filed April 26, 2017.

Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D17-281

, 3D17-158, 3D17-159

Lower Tribunal Nos. 16-25725, 16-25670, 16-25669

, 16-23856

________________



### The State of Florida

, Petitioner,

vs.



### Ambrose Dixon and Johan Matienzo,

Respondents.

Cases of Original Jurisdiction

– Prohibition, Certiorari, Mandamus.

Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken,

Assistant Attorney General

, for petitioner.

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant

Public Defender

, for respondents.

Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.

ROTHENBERG, J.

In these consolidated cases, the State of Florida has filed petitions seeking2

writs of prohibition, certiorari and mandamus. All three appellate cases arise from

the trial judge’s stated policy requiring the State to file an information by the

twenty-first day after the arrest of the defendant or face a sua sponte release of the

defendant or a reduction of the defendant’s bond.

It has long been held in the courts of this state that “every litigant is entitled

to nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis

v. Parks

, 194 So. 613, 615 (Fla. 1939). Because the trial judge’s on-the-record

comments reflect a predisposition to release defendants from custody either on

their own recognizance (“ROR”) or on a de minimis release condition, such as a $1

bond, if the State fails to file charges on the twenty-first day after arrest, we

conclude that the trial judge erred by denying the State of Florida’s (“the State”)

legally sufficient motion to disqualify the trial judge in State v. Dixon

, which was

filed on the twenty-first day after Dixon’s arrest and where the State was

unprepared to file formal charges. We, therefore, grant the State’s petition for

writ of prohibition in State v. Dixon filed under appellate case number 3D17-281.

Based on the discussion which follows, we also grant the State’s petition for

certiorari relief in State v. Matienzo

, filed under appellate case number 3D17-158,

but deny the State’s petition for writ of prohibition in State v. Matienzo

, filed

under appellate case number 3D17-159.

State v. Ambrose Dixon, Appellate Case Number 3D17-281

.3

The defendant, Ambrose Dixon (“Dixon”), was arrested for numerous

offenses in three separate cases, allegedly committed on three separate dates. In

case number F16-25669, Dixon was charged with making written threats to kill or

do bodily harm (a second degree felony) and making threatening or harassing

phone calls (a first degree misdemeanor) on July 18, 2016. In case number F16-

25725, he was charged with committing these same offenses on November 30,

2016. Lastly, in case number F16-25670, Dixon was charged with committing a

strong arm robbery (a second degree felony) and grand theft (a third degree felony)

on December 26, 2016. At his first appearance, a finding of probable cause was

made, and at the bond hearing, Dixon was given bonds totaling $28,500 as to all

three cases, with an additional condition of house arrest.

The Assistant State Attorney that was handling Dixon’s cases: (1) was not

able to complete his investigation prior to the scheduled arraignment on January

17, 2017, which was the twenty-first day after Dixon was arrested; (2) intended to

ask the trial judge, the Honorable Alberto Milian (“the trial judge”), to reset the

arraignment for the thirtieth day as authorized by rule 3.134, Florida Rules of

Criminal Procedure (2016); and (3) was aware of the trial judge’s policy of

releasing defendants sua sponte

, either ROR or on a $1 bond without considering

any other factors when formal charges are not filed by the twenty-first day after

arrest. Accordingly, the Assistant State Attorney filed a motion to disqualify the4

trial judge prior to his announcement at the arraignment and requested a reset of

the arraignment to the thirtieth day. Accompanying the motion to disqualify was a

sworn affidavit signed by the Assistant State Attorney and transcripts of the

relevant proceedings in State v. Matienzo (case number F16-23856), over which

the trial judge presided.

A. Grounds For Disqualification

As grounds for disqualification, the Assistant State Attorney identified

Dixon’s pending charges and current bond status and stated that the State was not

going to be able to complete its investigation prior to the twenty-first day (January

17, 2017), and thus, it was going to request the trial judge to reset the arraignment

for the thirtieth day. The motion also stated that the Assistant State Attorney had a

well-founded fear that the trial judge would not be fair and impartial to the State

when ruling on motions regarding Dixon’s bond or at trial, if the case proceeded to

trial, because the Assistant State Attorney was aware of the trial judge’s tone and

statements made in State v. Matienzo

, which he argued demonstrate: (1) a

predisposition to release defendants ROR or on a very low bond in every case in

which the trial judge believes the charging document was not timely filed, with or

without a motion by defense counsel; (2) a predisposition for assisting defendants

by sua sponte granting bonds and suggesting courses of action to defense counsel;

and (3) hostility towards the State Attorney’s Office because the trial judge5

perceives the office as having a “lackadaisical bureaucratic attitude” towards the

timely filing of charges.

B. State v. Matienzo (Case Number F16-23856), Which Was Relied On By

the State in State v. Dixon

In support of his allegation regarding the trial judge’s predisposition to apply

such a policy, the Assistant State Attorney in State v. Dixon relied on the record in

State v. Matienzo

, case number F16-23856. This record reflects that when case

number F16-23856 was called up for arraignment on December 20, 2016, the

twenty-first day after Matienzo’s arrest, Matienzo had three other felony cases

pending before the trial court: (1) case number F16-14443, in which Matienzo was

charged with strong arm robbery; (2) case number F16-23864, wherein Matienzo

had been arrested for first degree grand theft and the arraignment had been reset

for December 29, 2016, the thirtieth day; and (3) case number F16-23919, which

was set for arraignment the following day. The case that was set for arraignment

on December 20, 2016, case number F16-23856, was for an armed home invasion

robbery with a firearm, a first degree felony punishable by life imprisonment, and

two counts of aggravated battery with a firearm, second degree felonies punishable

by fifteen years imprisonment with three-year minimum mandatories. Thus,

Matienzo was being held without bond on that case.

As outlined in the motion to disqualify, when case number F16-23856 was

called up for arraignment on the morning of December 20, 2016, the Assistant6

State Attorney assigned to prosecute the case informed the trial judge that he had

just finished the pre-file meetings with the witnesses and therefore he needed an

extra day to generate the paperwork in order to file the charges in that case, and

asked the trial judge to reset the arraignment for the following day where Matienzo

was scheduled for arraignment on another case (case number F16-23919). The

trial judge refused to reset the arraignment for the following day. Then, with no

notice to the State, motion by defense counsel, or consideration of any of the

factors that the court is required to consider when determining whether to release a

defendant on bail or other conditions, see § 903.046, Fla. Stat. (2016), the trial

judge sua sponte ordered that Matienzo be released ROR 1 because the State had

not filed an information when the case was called for arraignment on the twentyfirst day.

Also sua sponte and with no notice to the State or motion by defense

counsel, the trial judge changed the bond which had been previously set in case

number F16-23864, and which had already been reset to the thirtieth day for

arraignment, to ROR, which he later modified to a $1 bond. The Assistant State

Attorney objected to the rulings in both cases and explained that Matienzo was

going to be charged with a felony punishable by life, a non-bondable offense, in

1 Although the trial judge initially released Matienzo ROR on case number F16-

23856, which included a non-bondable offense, he later, also sua sponte

, changed

the ROR designation to a $1 bond to allow Matienzo to receive credit for the time

he remained in custody until the bond of $1 was posted.7

case number F16-23856, Matienzo had violated his pre-trial release in case number

F16-14443, Matienzo posed a danger to the community, and firearms were

involved in almost all of Matienzo’s cases. The Assistant State Attorney also

asked if the trial judge would reconsider his rulings if the State filed the

information in case number F16-23864 within thirty minutes. The trial judge

responded that he would not reconsider his rulings even if the State filed the

charges in thirty minutes (and still on the twenty-first day):

THE COURT: I will not reconsider. I have made my position

abundantly clear, as I have told the State on repeated occasions in

numerous courtrooms, there is a duty and an obligation to act

expeditiously. And the failure of the government to act is going to

have some consequences. So the bond will be set at $1.00 on both of

those cases.

As promised, later that morning and still on the twenty-first day, the State

filed formal charges against Matienzo in case number F16-23856, charging him

with armed robbery with a firearm, a non-bondable first degree felony punishable

by life, and two counts of aggravated battery with a firearm, second degree felonies

punishable by fifteen years imprisonment, and an additional charge of possession

of a firearm by a delinquent. Based on the filing of formal charges, the Assistant

State Attorney asked the trial judge to reconsider Matienzo’s bond status because

the information had been filed on the twenty-first day. The trial judge denied the

request stating: “When I called up the case an hour and a half ago it was not filed,

so your request is hereby denied.”8

When Matienzo’s cases were before the trial judge the following day,

December 21, 2016, for arraignment on another case, the Assistant State Attorney

again asked the trial judge to reconsider his ruling on Matienzo’s bond in case

number F16-23856. The trial judge remained steadfast and denied the motion

stating:

I put you on notice when you came into this division. You have

an obligation, and I have an obligation. If you do not file the charges

on a timely basis, it is on you. And there is no reason you could not

have filed it yesterday. Ultimately, you filed it within an hour. Proper

planning prevents poor performance. You have an obligation. You

comply with that obligation.

. . . Now, I have told the division repeatedly. And I have told the

defendants and I have told the public defenders and I have told the

private bar that I am not going to put off somebody’s liberty, so that

the State can come in on the 33rd day and say, we are filing a resisting

without violence. And somebody is sitting incarcerated. Since I am

not a prophet, and I do not have the obligation of filing the charges, I

really am going to hold your feet to the fire. That has been my

position. Do not interrupt me. You did that yesterday. Do not

interrupt me and do not argue with me. Your request is denied.

When the Assistant State Attorney attempted to inquire about the bond that

the trial judge had sua sponte reduced to $1 in case number F16-14443 and explain

why he was approximately one hour late with filing the charges in case number

F16-23856, the trial court refused to entertain either the prosecutor’s question or

explanation, stating: “I am not here to do a question and answer on your cases,”

and “I do not require an explanation.”

On January 6, 2016, the Assistant State Attorney made one last attempt to9

explain the cause of the slight delay in the filing of the charges in case number

F16-23856 and to apprise the trial judge of why pre-trial detention on the nonbondable offense and the additional charges was important in this case. However,

rather than considering the seriousness of the charges, the fact that the charges

were filed on the twenty-first day and before the trial judge had completed that

morning’s call of the calendar, Matienzo’s dangerousness to the community, and

the fact that the charged crimes allegedly occurred while Matienzo was on pre-trial

release on other serious charged offenses, the trial judge continued to adhere to his

stated policy of releasing defendants when the State fails to file the charges by

what the trial judge has determined is timely. And then, on January 21, 2016,

without listening to the Assistant State Attorney’s explanation, the trial judge

accused the Assistant State Attorney and the State in general of “negligence,”

“dereliction” “or plain out bureaucratic laziness.”

THE COURT: If all of those factors that you cite in your

motion were true you, your office, the police agencies, had an

obligation to file those charges in accord with the law. You chose not

to. I don’t know if there was negligence, or dereliction, or plain out

bureaucratic laziness. I gave the gentleman a $1 bond because of the

failure of the government to adhere to its responsibilities to file the

charges.

If all of those factors are true, and they should be considered by

a judge, whether it’s me or anybody else, then your office and you

should have moved to file those appropriate charges in the appropriate

time. Just because a man is sitting in jail accused of a heinous crime

does not give us the luxury of bureaucratic neglect and largess of

somebody else’s freedom. And the reason that I have made it a point

in two years of stating my position that I as a gatekeeper of justice and10

fairness will not sit idly by when a human being is incarcerated who is

either poor or facing a serious charge where he is being held without a

bond and wait [here for approximately one hour] for the government

to make its decision

. . . .

. . . . Your motion is hereby denied. And I will stand by my ruling

understanding everything that you have said, and even taking it at face

value. I only wish whoever was responsible for filing those charges

would have taken those factors in account. If Mr. Matienzo goes out

– if he’s a danger to the community like you claim the responsibility

lies with you, not with me.

. . . . That is my position. I have explained it. It will continue to be my

position. Just as we have the exclusionary rule to assure that law

enforcement abides by the constitution[,] in this case a bond was set

because of the government’s failure to act on a timely basis according

to their responsibilities, and according to the law.

C. Legal Analysis: Motion to Disqualify

The Florida Rules of Judicial Administration provide for the disqualification

of a judge when “the party 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.

Jud. Admin. 2.330(d)(1). The legal sufficiency of a motion to disqualify depends

on “whether the facts alleged would place a reasonably prudent person in fear of

not receiving a fair and impartial trial.” Livingston v. State

, 441 So. 2d 1083, 1087

(Fla. 1983); State v. Borrego

, 105 So. 3d 616, 619 (Fla. 3d DCA 2013). The

allegations of fact that are contained in the motion must be taken as true, Masten v.

State

, 159 So. 3d 996, 997 (Fla. 3d DCA 2015), and “the question of

disqualification focuses not on what the judge intended, but rather how the11

message is received and the basis of the feeling.” Great Am. Ins. Co. of N.Y. v.

2000 Island Boulevard Condo. Ass’n

, 153 So. 3d 384, 390 (Fla. 3d DCA 2014)

(citing Livingston

, 441 So. 2d at 1086).

We conclude that each of the grounds raised in the State’s motion for

disqualification are legally sufficient, requiring the trial judge’s disqualification.

(1) The trial judge’s stated policy

The trial judge announced his policy regarding the release of defendants if

the charges are not filed on the twenty-first day after arrest. Specifically, the trial

judge made the following statements: (1) “I have made my position abundantly

clear, as I have told the State on repeated occasions in numerous courtrooms, there

is a duty and an obligation to act expeditiously. And the failure of the government

to act is going to have some consequences. So the bond will be set at $1 on both of

those cases”; (2) “I gave the gentleman a $1 bond because of the failure of the

government to adhere to its responsibilities to file the charges”; and (3) “That is

my position. I have explained it. It will continue to be my position. Just as we

have the exclusionary rule to assure that law enforcement abides by the

constitution[,] in this case a bond was set because of the government’s failure to

act on a timely basis according to their responsibilities, and according to the law.”

The trial judge’s actions demonstrated that he was willing to adhere to this

policy even when (1) a defendant had four pending felony cases and was out on12

pre-trial release when he was arrested for an armed home invasion robbery (a nonbondable offense) and two counts of aggravated battery with a firearm; (2) the

State filed the charges on the twenty-first day, albeit approximately one hour after

the case was initially called up for arraignment; and (3) the Assistant State

Attorney informed the trial judge that he had just completed the pre-filing process,

and he would be prepared to file the information in thirty minutes if the trial judge

would pass the case to allow him to complete the paperwork. The trial judge’s

strict adherence to his stated policy was also demonstrated in his unwillingness to

entertain the Assistant State Attorney’s explanation for the delay or to consider

Matienzo’s danger to the community, the likelihood that Matienzo would re-offend

while out of custody, and the other relevant factors a court must consider when

deciding to release a defendant from custody and determining the conditions of the

release. Instead, the trial judge sua sponte released Matienzo, who was being held

on a non-bondable offense, even after the charges had been filed on the twentyfirst day and within one hour of the scheduled arraignment.

“[J]udicial comments revealing a determination to rule a particular way prior

to hearing any evidence or argument have been found to be sufficient grounds for

disqualification.” Thompson v. State

, 990 So. 2d 482, 490 (Fla. 2008). “A trial

judge’s announced intention before a scheduled hearing to make a specific ruling,

regardless of any evidence or argument to the contrary, is the paradigm of judicial13

bias and prejudice.” Gonzalez v. Goldstein

, 633 So. 2d 1183, 1184 (Fla. 4th DCA

1994).

Thus, a motion to disqualify a trial judge may rely on the judge’s

announcement of his policy in other cases in order to establish a well-founded fear

that the judge will not be impartial in the case in which the motion to disqualify

was filed. In Dunlevy v. State

, 201 So. 3d 733, 736 (Fla. 4th DCA 2016), defense

counsel quoted and relied on multiple statements by the trial judge in other cases

and asserted that the facts and statements in those other cases demonstrated that the

trial judge had a policy of sentencing indigent defendants who were unable to pay

restitution more harshly than defendants who could pay restitution or who could

pay restitution more quickly than a co-defendant. The Fourth District Court of

Appeal concluded that, based on the allegations in the motion to disqualify,

Dunlevy’s fear of bias against him because he could not pay restitution was

reasonable, and thus the motion to disqualify should have been granted. Id. at 736.

Similarly, in Martin v. State

, 804 So. 2d 360 (Fla. 4th DCA 2001), the

motion to disqualify the trial judge was based on the allegation that the trial judge

had a policy of ordering that any jail or prison sentence be followed by a period of

probation, which reflected the trial judge’s failure to apply individualized

sentencing criteria in determining the appropriate sentence to impose following a

guilty or no contest plea or a guilty verdict. Id. at 362. This allegation was based14

on statements the trial judge had allegedly made to a reporter. Because the trial

judge’s remarks to the reporter could have reasonably been interpreted as

announcing a fixed intention to have probation invariably follow any jail or prison

sentence that the judge would impose, the motion to disqualify the trial judge was

found by the appellate court to be legally sufficient and should have been granted.

Id. at 364; see also Torres v. State

, 697 So. 2d 175, 177 (Fla. 4th DCA 1997)

(concluding that the judge’s announced policy that no probation violator would be

sentenced to time served constituted legally sufficient grounds for disqualification

because the policy personally affected Torres and placed him in fear that he would

not receive a fair sentencing hearing); Hayes v. State

, 686 So. 2d 694, 695 (Fla. 4th

DCA 1996) (holding that disqualification of the trial judge was required based on

the judge’s comments to an assistant public defender representing another

defendant that the judge would never sentence a defendant to time served on a

violation of probation, and finding that although the statement was not specifically

directed towards Hayes, the trial judge erred by denying Hayes’ motion to

disqualify).

As these examples reflect, a judge’s announced policy or predisposition to

rule in a particular manner is grounds for disqualification. Here, the trial judge’s

announced policy of releasing defendants either on ROR or on a de minimis bond

of $1 if the State does not file charges by the twenty-first day following the arrest,15

without consideration of the nature of the offense, the reason for the delay, the

defendant’s prior record, the risk to the community, and the likelihood that the

defendant will appear for all scheduled court appearances, gave the State a wellfounded fear that it would not receive fair and impartial treatment when it

announced its unreadiness to file Dixon’s charges on the twenty-first day.

This policy is also in violation of Florida’s statutory law and criminal

procedure rules. Florida Rule of Criminal Procedure 3.134 addresses the time

parameters for the filing of formal charges after an arrest and provides as follows:

The state shall file formal charges on defendants in custody by

information, or indictment, or in the case of alleged misdemeanors by

whatever documents constitute a formal charge, within 30 days from

the date on which the defendants are arrested or from the date of the

service of capiases upon them. If the defendants remain uncharged,

the court on the 30th day and with notice to the state shall:

(1) Order that the defendants automatically be released on their own

recognizance on the 33rd day unless the state files formal charges by

that date; or

(2) If good cause is shown by the state, order that the defendants

automatically be released on their own recognizance on the 40th day

unless the state files formal charges by that date.

In no event shall any defendants remain in custody beyond 40 days

unless they have been formally charged with a crime.

Section 907.041(3)(a), Florida Statutes (2016), explains that, while there

exists “a presumption in favor of release on nonmonetary conditions for any person

who is granted pretrial release,” the statute limits that presumption to persons not16

charged with a dangerous crime. 2 However, if a person is arrested for a dangerous

crime, the Legislature has clearly expressed its intent that such persons be held on

pretrial detention or released on monetary conditions that will assure the presence

of the person at trial and other proceedings, protect the community, and assure the

integrity of the judicial process. See § 907.041(1), (3).

2 Section 907.041(4)(a) defines a “dangerous crime” as including the following

offenses:

1. Arson;

2. Aggravated assault;

3. Aggravated battery;

4. Illegal use of explosives;

5. Child abuse or aggravated child abuse;

6. Abuse of an elderly person or disabled adult, or aggravated abuse of an

elderly person or disabled adult;

7. Aircraft piracy;

8. Kidnapping;

9. Homicide;

10. Manslaughter;

11. Sexual battery;

12. Robbery;

13. Carjacking;

14. Lewd, lascivious, or indecent assault or act upon or in presence of a

child

under the age of 16 years;

15. Sexual activity with a child, who is 12 years of age or older but less than

18 years of age, by or at solicitation of person in familial or custodial

authority;

16. Burglary of a dwelling;

17. Stalking and aggravated stalking;

18. Act of domestic violence as defined in s. 741.28;

19. Home invasion robbery;

20. Act of terrorism as defined in s. 775.30;

21. Manufacturing any substance in violation of chapter 893; and

22. Attempting or conspiring to commit any such crime.17

Section 903.046, Florida Statutes (2016), reiterates that “[t]he purpose of a

bail determination in criminal proceedings is to ensure the appearance of the

criminal defendant at subsequent proceedings and to protect the community against

unreasonable danger from the criminal defendant.” § 903.046(1). Further, section

903.046(2) provides: (“[W]hen determining whether to release a defendant on bail

or other conditions, and what that bail or those conditions may be, the court shall

consider:)

(a) The nature and circumstances of the offense charged.

(b) The weight of the evidence against the defendant.

(c) The defendant’s family ties, length of residence in the

community, employment history, financial resources, and mental

condition.

(d) The defendant’s past and present conduct, including any record

of convictions, previous flight to avoid prosecution, or failure to

appear at court proceedings.

. . . (e) The nature and probability of danger which the defendant’s

release poses to the community.

(f) The source of funds used to post bail or procure an appearance

bond

. . . . (g) Whether the defendant is already on release pending resolution of

another criminal proceeding or on probation, parole, or other

release pending completion of a sentence.

(h) The street value of any drug or controlled substance connected to

or involved in the criminal charge.

. . . (i) The nature and probability of intimidation and danger to victims.

(j) Whether there is probable cause to believe that the defendant

committed a new crime while on pretrial release.

(k) Any other facts that the court considers relevant.

(l) Whether the crime charged is a violation of chapter 874 or

alleged to be subject to enhanced punishment under chapter 874

or reclassification under s. 843.22.

. . . (m) Whether the defendant, other than a defendant whose only

criminal charge is a misdemeanor offense under chapter 316, is18

required to register as a sexual offender.

. . or a sexual predator

. .

. .

Rule 3.131(d)(1), Florida Rules of Criminal Procedure, provides for the

mechanism to apply for the modification of bail after bail was set or denied at the

first appearance probable cause hearing. Rule 3.131(d)(1) provides that such

application be made by motion. Subsection (d)(2) requires at least three hours’

notice to the State if modification is being sought by the defendant, and at least

three hours’ notice to the defendant if modification is sought by the State.

The transcripts of the proceedings in State v. Matienzo

, which served as the

basis for and were attached to the motion to disqualify the trial judge in State v.

Dixon

, reflect that based on the trial judge’s stated policy, the trial judge refused to

comply with the law. Florida Rule of Criminal Procedure 3.134 only allows for

automatic release for a defendant on the thirty-third day if formal charges have not

been filed and after notice to the State on the thirtieth day that such release shall

take place on the thirty-third day unless good cause can be shown by the State.

Section 903.046 also requires that when considering whether to release a defendant

on bail or other conditions, the court shall consider a lengthy statutory list of

circumstances bearing on the weight of the evidence against the defendant, the risk

to the community, and the likelihood of the defendant’s future court appearances.

And rule 3.131(d) only provides for the modification of an existing bail amount or

no bail determination by motion of either the defendant or the State and with at19

least three hours’ notice.

However, the transcripts in State v. Matienzo reflect that, based on the trial

judge’s stated policy, with no motion by the defendant, no notice to the State, and

on the twenty-first day following Matienzo’s arrest in case number F16-23856, the

trial judge released Matienzo on a reduced bail of $1. This ruling was also made

despite the fact that the first appearance judge had ordered that Matienzo be held

on no bond status in that case because Matienzo was arrested on the non-bondable

offense of armed home invasion robbery; the State announced that it had

completed its investigation and that the charges would be filed on the twenty-first

day; the State filed the charges approximately one hour later; and the trial judge

did not consider any of the factors the court is required to consider pursuant to

section 903.046. As a further demonstration of the trial judge’s adherence to his

stated policy, he refused to reconsider his ruling after the State returned to the

courtroom approximately one hour later to notify the trial judge that the charges,

including the non-bondable offense, had been filed, or to consider the State’s

subsequently filed motion for modification of bail. Rather than considering the

statutory factors for modification of bail either at the time the trial judge sua sponte

modified the bail or upon the State’s subsequent properly noticed motion for

modification, the trial judge stated that if the factors stated in the motion were true,

they should have been considered by the State and the State should have “file[d]20

those appropriate charges in the appropriate time.”

Your motion is hereby denied. And I will stand by my ruling

understanding everything that you have said, and even taking it at face

value. I only wish whoever was responsible for filing those charges

would have taken those factors in account. If Mr. Matienzo goes out

– if he’s a danger to the community like you claim the responsibility

lies with you, not with me.

. . . . That is my position. I have explained it. It will continue to be my

position. Just as we have the exclusionary rule to assure that law

enforcement abides by the constitution[,] in this case a bond was set

because of the government’s failure to act on a timely basis according

to their responsibilities, and according to the law.

The State’s motion to disqualify the trial judge in State v. Dixon

,

accompanied by a sworn affidavit by the Assistant State Attorney and the

transcripts of the proceedings in State v. Matienzo

, was thus a legally sufficient

motion requiring disqualification. The allegations, supporting affidavit and

transcripts would place a reasonably prudent person, which in this case is the

Assistant State Attorney prosecuting the criminal cases against Dixon, in front of

the same judge who presided in State v. Matienzo

, in fear of not receiving a fair

and impartial consideration of the defendant’s bond status when the Assistant State

Attorney was unprepared to file charges against Dixon on the twenty-first day. We

therefore conclude that the trial court erred by denying the motion to disqualify.

(2) The trial judge’s predisposition for assisting defendants on bond issues

Although we have already concluded that disqualification is required based

on the trial judge’s stated policy to release defendants ROR or on a $1 bond when21

the State does not file charges against a defendant who is in custody on the twentyfirst day, we briefly address the two remaining grounds asserted by the State for

disqualification of the trial judge. The law in Florida is clear

– a judge may not

enter into the fray by giving “tips” or legal advice to either side. Chastine v.

Broome

, 629 So. 2d 293, 295 (Fla. 4th DCA 1993). “When a judge enters into the

proceedings and becomes a participant or an advocate, a shadow is cast upon

judicial neutrality.” R.O. v. State

, 46 So. 3d 124, 126 (Fla. 3d DCA 2010); see

also Williams v. State

, 160 So. 3d 541, 544 (Fla. 4th DCA 2015); J.F. v. State

, 718

So. 2d 251, 252 (Fla. 4th DCA 1998). Thus, when a judge provides legal advice,

that alone is sufficient to compel disqualification. Great Am. Ins. Co.

, 153 So. 3d

at 388.

The transcripts filed with the motion to disqualify reflect that after ordering

that Matienzo be released ROR, the trial judge directed the Assistant Public

Defender to contact the Public Defender’s Early Release Unit (“ERU”) and to

instruct the unit to be more proactive in filing motions before the trial judge to

release defendants who are unable to post bond.

THE COURT: I have been a little bit distressed to see some people

held on what I consider minor charges, grand thefts and possession of

cocaine charges that end up getting nolle prosed on the day of the

arraignment, and for some reason it is not being brought to me. So

please talk to your

- -what do you call that unit. The.

ASSISTANT PUBLIC DEFENDER: E-R-U.22

THE COURT: ERU, early

-- and tell them to put these cases down. I

do not care if they put them down 24 hours’ notice.

By directing the Assistant Public Defender to set more cases on the calendar

to enable the trial judge to release more defendants from custody, the trial judge

was offering advice or tips to the Public Defender’s Office and abandoned his

neutrality. In Chastine

, 629 So. 2d at 295, the Fourth District disqualified a judge

who passed a note to the prosecutor giving the attorney strategy tips. In J.F.

, 718

So. 2d at 252, the Fourth District reversed J.F.’s conviction after the trial judge

directed a State witness to obtain additional evidence and sua sponte continued a

hearing pending the results of a fingerprint examination. In Great American

Insurance Co.

, 153 So. 3d at 388, this Court found that disqualification of the trial

judge was required where he offered legal advice to the plaintiff by stating, “If it

were me, I would still ask questions of an opinion nature and get the statements

regarding privilege on the record.” And in Williams

, 160 So. 3d at 544, the

appellate court found that it was reasonable for Williams to question the trial

court’s neutrality where the trial court prompted the State to move for

reconsideration of a suppression order.

We see no reason to treat the trial judge’s tips to the Public Defender’s

Office in this case any differently than the tips provided in other cases which

required disqualification of the trial judge or a reversal of the judgment. “Trial

judges must studiously avoid the appearance of favoring one party in a lawsuit, and23

suggesting to counsel or a party how to proceed strategically constitutes a breach

of this principle.” Shore Mariner Condo. Ass’n v. Antonious

, 722 So. 2d 247, 248

(Fla. 2d DCA 1998).

(3) Comments demonstrating hostility and/or bias against the State

The trial judge accused the State of having a “lackadaisical bureaucratic

attitude” and of “negligence, or dereliction, or plain out bureaucratic laziness” for

not filing charges on the twenty-first day. He further added that the seriousness of

the charges did not support the “luxury of bureaucratic neglect and largess of

somebody else’s freedom.” The trial judge levied these accusations while at the

same time precluding the Assistant State Attorney from explaining what caused the

delay, and despite the fact that the Assistant State Attorney had completed his prefiling investigation that morning, and he had filed the charges one hour later on the

twenty-first day. Specifically, when the Assistant State Attorney attempted to

provide an explanation when the case was called up for arraignment on the twentyfirst day, the trial judge refused to listen and told him, “Do not interrupt me again.

I will listen to you whenever I ask you to speak.” The trial judge admonished the

Assistant State Attorney again on the following day after the charges were filed

and when the Assistant State Attorney attempted to provide an explanation, the

trial judge stated: “Do not interrupt me. You did that yesterday. Do not interrupt

me and do not argue with me. Your request is denied.”24

The trial judge also inferred that the State’s “laziness,” “lackadaisical

bureaucratic attitude,” “negligence or dereliction” results in defendants needlessly

sitting in custody and stated that he would not “rubber stamp having somebody in

custody without the law being obeyed,” thus implying that the law requires the

filing of formal charges by the twenty-first day, which it does not, and that the

State is violating the law when it fails to file charges on the twenty-first day and

requests a reset until the thirtieth day, which it is legally entitled to request. These

accusations and negative comments directed at the Assistant State Attorney and the

State in general requires disqualification. See State v. Alzate

, 972 So. 2d 226, 229

(Fla. 3d DCA 2007) (requiring disqualification where the trial judge accused the

victim’s counsel of “playing games” and accused him of deliberately delaying the

proceedings to accrue larger hourly fees); Valdes-Fauli v. Valdes-Fauli

, 903 So. 2d

214, 217 (Fla. 3d DCA 2005) (holding that the trial judge’s words and actions

reasonably gave the wife a legitimate fear that she would not receive a fair and

impartial trial, thus warranting disqualification); Royal Caribbean Cruises, Ltd. v.

Doe

, 767 So. 2d 626, 627 (Fla. 3d DCA 2000) (holding that disqualification was

required where the judge’s remarks suggested that she had preexisting unfavorable

opinions about the management and litigation tactics of the cruise line industry).

State v. Matienzo, Appellate Case Numbers 3D17-158 and 3D17-159

In appellate case number 3D17-158, the State seeks a writ of certiorari25

quashing the trial judge’s order rendered on January 9, 2017, denying pre-trial

detention of the defendant, Matienzo, based on the trial judge’s stated policy of

releasing defendants as previously discussed in this opinion. Additionally, the

State seeks a writ of mandamus to require the trial judge to afford the State with a

hearing on its motion for pretrial detention and for consideration of the factors

provided in section 907.041, Florida Statutes. 3

In appellate case number 3D17-159, the State seeks a writ of prohibition

prohibiting the trial judge from imposing his stated policy of releasing defendants

ROR or on de minimis conditions, such as a $1 bond, when the State does not file

charges by the time the case is called for arraignment on the twenty-first day after

arrest.

Based on our decision in State v. Dixon

, we grant the petition for writ of

certiorari, quash the January 9, 2017 order denying pre-trial detention, and remand

for reassignment of Matienzo’s cases to another judge. Because we are confident

that upon the trial judge’s consideration of this opinion, the trial judge will comply

with sections 903.046, and 907.041, and rules 3.131 and 3.134, we deny the

petition seeking a writ to prohibit the trial judge from imposing his previously

stated policy in future cases.

CONCLUSION

3 Based on our ruling on the petition for writ of prohibition, we decline to address

the petition for writ of mandamus as it is moot.26

A. State v. Dixon, Appellate Case Number 3D17-281

Because the allegations and transcripts attached to the motion to disqualify

the trial judge would place a reasonably prudent person, which in this case is the

Assistant State Attorney who filed the motion to disqualify, in fear of not receiving

a fair and impartial hearing before the trial judge, disqualification was required.

We, therefore, grant the petition for writ of prohibition in State v. Dixon

, appellate

case number 3D17-281, and remand for the assignment of a new judge to hear all

proceedings against Dixon. Because we conclude that the trial judge should have

granted the motion to disqualify, his subsequent rulings were without authority and

are hereby vacated. See State v. Borrego

, 105 So. 3d 616, 621 (Fla. 3d DCA

2013); Coba v. Pepper

, 779 So. 2d 599, 600 (Fla. 3d DCA 2001).

B. State v. Matienzo, Appellate Case Numbers 3D17-158 and 3D17-159

We grant the petition for writ of certiorari filed in appellate case number

3D17-158, quash the January 9, 2017 order under review, and remand for

reassignment of Matienzo’s cases to another judge and for consideration of the

State’s motion for pre-trial detention. We deny the petition for writ of prohibition

filed in appellate case number 3D17-159 for the reasons previously stated in this

opinion.

Petition for writ of prohibition, case number 3D17-281 granted; petition for

writ of certiorari in case number 3D17-158 granted and remanded with27

instructions; petition for writ of prohibition in case number 3D17-159 is denied.

This opinion shall take effect immediately notwithstanding the filing or

disposition of any motion for rehearing.