Predetermination as a grounds for recusal procedure and law: (pulled from Fuster-Escalona v. Wisotsky, 715 So. 2d 1053 (Fla. 4th
DCA 1998))
http://www.law.fsu.edu/library/flsupct/sc93949/op-sc93949.pdf (sorry about the formatting)
Section 38.10, Florida Statutes (1993), provides:
Disqualification of judge for prejudice; application;
affidavits; etc.--Whenever a party to any action or
proceeding makes and files an affidavit stating that he fears he will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.
§ 38.10, Fla. Stat. (1993) (emphasis added). Florida Rule of Judicial Administration 2.160 establishes the procedural aspects of seeking disqualification. Rule 2.160 states that:
(f) Determination--Initial Motion. The judge against
whom an initial motion to disqualify under subdivision
(d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and
proceed no further in the action.
If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion. Fla. R. Jud. Admin. 2.160(f) (emphasis added).
This Court has strictly applied the above language because an allegation of judicial prejudice is always a serious matter. Thus, the rule provisions concerning “immediate” resolution have been accorded their plain meaning, which the Court has explained requires action that is “prompt” and “with dispatch.” Livingston v. State,
441 So. 2d 1083, 1085 (Fla. 1983). Our comment on the adoption of rule 2.160
emphasizes a trial judge’s responsibility to act quickly on such a motion: “We find
the motion [to disqualify] should be ruled on immediately following its presentation to
the court.” Florida Bar re Amendment to Fla. Rules of Judicial Admin., 609 So. 2d
465, 466 (1992). When a trial court fails to act in accord with the statute and
procedural rule on a motion to disqualify, an appellate court will vacate a trial court
judgment that flows from that error. See, e.g., Cave v. State, 660 So. 2d 705, 708
(Fla. 1995) (“[W]e find that Judge Walsh’s conduct failed to follow the procedural
process outlined in rule 2.160 and his error requires us to vacate Cave’s sentence.”).