Randy W. Tundidor v. State of Florida ( 2023 )

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
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, well-
founded, 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
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