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


Menu:
  •           Supreme Court of Florida
    ____________
    No. SC2022-1732
    ____________
    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 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
    -2-
    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
    -3-
    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
    -4-
    [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
    -5-
    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).
    -6-
    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.
    -7-
    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
    -8-