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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

judicial decisions.”

judicial decisions.” In fact, in a subsequent decision where an examination of one of the judges at issue in Lewis was permitted, this Court noted no impropriety when the judge was asked why he had engaged in ex parte contact with the State and responded, “I think I called him up to have something deleted. He changed my mind. I left it in, I think.” Smith v. State, 708 So. 2d at 255. This Court reversed the denial of Rule 3.850 that was at issue and was the subject of the ex parte contact, “[b]ased upon our review of the record, and especially the foregoing testimony.” Id. Mr. Riechmann was and is entitled to ascertain the nature and the scope of Judge Bagley’s efforts to collect evidence outside the judicial process. The fact that such investigation happened at all should warrant disqualification of Judge Bagley and the reversal of his order denying relief. However, to the extent that this Court in Smith required the parties “to get the facts” before the order denying relief was vacated, Mr. Riechmann alternatively followed the procedure set forth in Smith and requested an evidentiary hearing to develop the facts. C. Reliance on Matters on Which No Evidence Was Presented Following receipt of Mr. Rosenblatt’s letter, Mr. 68

Riechmann’s counsel learned that Judge Bagley had been a prosecutor in the State Attorney’s Office at the time of Mr. Riechmann’s trial. Either because of his personal knowledge about matters at issue or because of his independent investigation, Judge Bagley relied upon facts not in evidence in denying Mr. Riechmann’s motion to vacate. In his order, Judge Bagley relied on the markings on an envelope containing Smykowski’s letter to Beth Sreenan. The postmark was March 27, 1988. Without any evidence from either party explaining the meaning of a stamp that stated, “RECEIVED, Oct. 4, 1988, Sexual Battery Unit, State Attorney, 11 th Circuit,” Judge Bagley stated that this stamp established that the letter was not received by the State Attorney’s Office until October 4, 1988. No evidence was presented about when the “RECEIVED” stamp was placed on the envelope by the Sexual Battery Unit in relationship to when the letter was received by Beth Sreenan. There was no evidence about the procedure within the State Attorney’s Office for how the mail was processed in 1988 or about whether this was a regular or irregular practice or why the Sexual Battery Unit stamp would be on a homicide case. Judge Bagley’s conclusion that the date stamp was significant was premised upon information not presented at the evidentiary hearing and not subject to an 69

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