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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

denying Rule 3.850

denying Rule 3.850 relief in open court. It was not until the next day that collateral counsel received her copy of Mr. Rosenblatt’s letter. Counsel immediately filed a “motion to get the facts” as had been done by the State in Smith v. State, 708 So. 2d 253 (Fla. 1998), when collateral counsel there objected to ex parte contact between the State and the presiding judge (Supp. PC-R2. 75). Counsel also filed a motion to disqualify Judge Bagley in light of the ex parte contact in which he sought materials that had not been introduced into evidence (Supp. PC-R2. 83). The Code of Judicial Conduct states: “A judge should [] neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.” Fla. Bar Code Jud. Conduct, Canon 3 A(4). As Justice Overton once explained for this Court: [C]anon [3 A(4)] implements a fundamental requirement for all judicial proceedings under our form of government. Except under limited circumstances, no party should be allowed the advantage of presenting matters to or having matters decided by the judge without notice to all other interested parties. This canon was written with the clear intent of excluding all ex parte communication except when they are expressly authorized by statutes or rules. In re Inquiry Concerning a Judge: Clayton, 504 So. 2d 394, 395 (Fla. 1987). The trier of fact cannot have ex parte communications 62

with a party. Love v. State, 569 So. 2d 807 (1st DCA 1990); Rose v. State, 601 So. 1181 (Fla. 1992); Rollins v. Baker, 683 So. 2d 1138 (5 th DCA 1996); McKenzie v. Risley, 915 F.2d 1396 (9th Cir. 1990). This prohibition of ex parte proceedings applies in the Rule 3.850 process. This Court has specifically denounced ex parte communications in the course of 3.850 proceedings: Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant. 63 * * * We are not here concerned with whether an ex parte communication actually prejudices one party at the expense of the other. The most insidious result of ex parte communications is their effect of the appearance of the impartiality of the tribunal The impartiality of the trial judge must be beyond question. Rose v. State, 601 So. 2d 1181, 1183 (Fla. 1992). Thus, this Court specifically rejected any notion that proof of prejudice was prerequisite to establishing a due process violation arising from ex parte contact. In circumstances nearly identical to those found here, this Court found that a Rule 3.850 litigant’s due process rights were violated by ex parte contact between the prosecutor and the judge during the pendency of the Rule 3.850 motion. Smith v. State, 708 So. 2d at 255. There, as here,

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