84-1711 | Fla. Dist. Ct. App. | Jan 24, 1985
John MANGINA, et al., Petitioners,
v.
Lon S. CORNELIUS, Jr., Respondent.
District Court of Appeal of Florida, Fifth District.
Thomas R. Rogers of Rogers & Associates, P.A., Longwood, for petitioners.
Jim Smith, Atty. Gen., and Dean C. Kowalchyk, Asst. Atty. Gen., Tallahassee, for respondent.
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" date_filed="1978-12-22" court="Fla." case_name="Bundy v. Rudd">366 So.2d 440 (Fla. 1978) and State ex rel. Zacke v. Woodson, 399 So. 2d 7" date_filed="1981-05-06" court="Fla. Dist. Ct. App." case_name="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.