Cummings v. Montalvo

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED JOSHUA CUMMINGS, Petitioner, v. Case No. 5D13-4431 BRILLIANT MONTALVO, Respondent. ________________________________/ Opinion filed February 3, 2014 Petition for Writ of Prohibition, Sally D.M. Kest, Respondent Judge. Adam Pollack, Law Office of Adam L. Pollack, P.A., Orlando, for Petitioner. No appearance for Respondent. PER CURIAM. Petitioner seeks prohibition following an order denying his motion to disqualify the trial judge. The motion, which sought disqualification based upon the judge s statements indicating that she had strongly and definitively prejudged Petitioner s credibility in an unfavorable fashion, should have been granted. See Brown v. St. George Island, Ltd., 561 So. 2d 253, 257 (Fla. 1990). Because Petitioner has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial, id., we quash the order denying the motion to disqualify and remand to the trial court for further proceedings consistent with this opinion. We trust that the issuance of a formal writ will be unnecessary. PETITION GRANTED. SAWAYA, PALMER and LAWSON, JJ., concur. 2

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