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    The Supreme Court of Florida granted a writ of prohibition to disqualify the judge presiding over Randy Tundidor's postconviction proceedings. Tundidor alleged the judge, Elizabeth Scherer, hugged the prosecutor in Tundidor's case after sentencing in an unrelated capital case and later commiserated with the prosecutor, creating an appearance of bias. The Court found these facts would make a reasonable person fear an unfair hearing. As actual bias need not be shown, the motion to disqualify was legally sufficient and should have been granted to avoid any appearance of partiality. The Court quashed the order denying disqualification and directed reassignment of the case to a new judge.

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    sc2022 1732

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    The Supreme Court of Florida granted a writ of prohibition to disqualify the judge presiding over Randy Tundidor's postconviction proceedings. Tundidor alleged the judge, Elizabeth Scherer, hugged the prosecutor in Tundidor's case after sentencing in an unrelated capital case and later commiserated with the prosecutor, creating an appearance of bias. The Court found these facts would make a reasonable person fear an unfair hearing. As actual bias need not be shown, the motion to disqualify was legally sufficient and should have been granted to avoid any appearance of partiality. The Court quashed the order denying disqualification and directed reassignment of the case to a new judge.

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    The Supreme Court of Florida granted a writ of prohibition to disqualify the judge presiding over Randy Tundidor's postconviction proceedings. Tundidor alleged the judge, Elizabeth Scherer, hugged the prosecutor in Tundidor's case after sentencing in an unrelated capital case and later commiserated with the prosecutor, creating an appearance of bias. The Court found these facts would make a reasonable person fear an unfair hearing. As actual bias need not be shown, the motion to disqualify was legally sufficient and should have been granted to avoid any appearance of partiality. The Court quashed the order denying disqualification and directed reassignment of the case to a new judge.

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    © All Rights Reserved
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    8K views8 pages

    sc2022 1732

    Uploaded by

    Anonymous PbHV4H
    The Supreme Court of Florida granted a writ of prohibition to disqualify the judge presiding over Randy Tundidor's postconviction proceedings. Tundidor alleged the judge, Elizabeth Scherer, hugged the prosecutor in Tundidor's case after sentencing in an unrelated capital case and later commiserated with the prosecutor, creating an appearance of bias. The Court found these facts would make a reasonable person fear an unfair hearing. As actual bias need not be shown, the motion to disqualify was legally sufficient and should have been granted to avoid any appearance of partiality. The Court quashed the order denying disqualification and directed reassignment of the case to a new judge.

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    of 8

    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-

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