Mangina v. Cornelius, 462 So. 2d 602

ORFINGER, Judge.

The sworn motion and supporting affidavits seeking to disqualify respondent as trial judge in this civil action are legally sufficient. Where the motion is legally sufficient, “the judge shall not pass on the truth of the facts alleged [and] shall enter an order of disqualification.” Rule 1.432, Fla.R.Civ.P.; section 38.10, Florida Statutes (1983). See Bundy v. Rudd, 366 So.2d 440 (Fla. 1978) and State ex rel. Zacke v. Woodson, 399 So.2d 7 (Fla. 5th DCA 1981) which discuss the virtually identical Florida Rule of Criminal Procedure 3.230(d). Where the trial judge refuses to disqualify himself, prohibition is the proper remedy, Bundy, but on the basis of this opinion we assume the formal issuance of the writ will be unnecessary.

ORDERED ACCORDINGLY.

FRANK D. UPCHURCH, Jr. and COWART, JJ., concur.

Case Details

Case Name: Mangina v. Cornelius

Court Name: District Court of Appeal of Florida

Date Published: Jan 24, 1985

Citations: 462 So. 2d 602; 10 Fla. L. Weekly 237; 84-1711

Docket Number: 84-1711

Court Abbreviation: Fla. Dist. Ct. App.