IN THE SUPREME COURT OF FLORIDA NO. ANTHONY … · 1 Petitioner, Anthony John Ponticelli, by and...

IN THE SUPREME COURT OF FLORIDA NO. ___________

ANTHONY JOHN PONTICELLI,

Petitioner, v.

THE STATE OF FLORIDA,

Respondent.

PETITION SEEKING REVIEW OF NONFINAL ORDER IN DEATH PENALTY POSTCONVICTION PROCEEDING, AND/OR

PETITION FOR WRIT OF PROHIBITION

LINDA McDERMOTT Florida Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 141 N.E. 30th Street Wilton Manors, FL 33334 (850) 322-2172

Counsel for Mr. Ponticelli

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Petitioner, Anthony John Ponticelli, by and through

undersigned counsel, petitions this Court pursuant to Rule

9.142(b), Fla. R. App. Pro., for appellate review of a

nonfinal order, i.e. an order denying a motion seeking

judicial disqualification in capital collateral proceedings.

Specifically, Mr. Ponticelli seeks a determination by this

Court requiring the disqualification of the Honorable Victor

J. Musleh, Senior Judge of the Circuit Court of the Fifth

Judicial Circuit, in and for Marion County.

I. JURISDICTION

Historically, this Court has reviewed on an interlocutory

basis nonfinal orders denying judicial disqualification in

capital proceedings through a petition for a writ of

prohibition. In Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978),

this Court found that it had jurisdiction to entertain a petition seeking a writ of prohibition in

a capital proceeding under Art V, sec. 3(b)(8), Fla. Const. By virtue of the decision in

Bundy v. Rudd, a petition seeking a writ of prohibition was an original action

under Florida Rule of Appellate Procedure 9.030(a)(3), and the

form of the petition was governed by Rule 9.100(a).

However with the adoption of Rule 9.142(b), it appears

that this Court may also exercise its jurisdiction to review

nonfinal orders denying judicial disqualification by means of

a petition seeking review of nonfinal orders in death penalty

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postconviction proceedings. But, the form of a petition under

Rule 9.142(b) is also governed by Rule 9.100(a). Thus, it

would appear that this Court=s jurisdiction (recognized in

Bundy v. Rudd) may be invoked by an original petition that may

be either a petition for a writ of prohibition or a petition

seeking review of nonfinal order in death penalty proceedings.

II. COURSE OF PROCEEDINGS IN CIRCUIT COURT

On May 17, 2007, Mr. Ponticelli filed a motion to vacate

judgment of conviction and sentence with request for leave to

amend. This was a successive motion to vacate under Rule

3.851, and was thus governed by Rule 3.851(e)(2).1

1In this motion, Mr. Ponticelli pled: APostconviction counsel has now discovered that less than three months before Mr. Ponticelli was tried and sentenced to death, Investigator Bruce Munster penned a letter to a Department of Corrections official. The letter makes clear that Freeman had been used by Inv. Munster in late 1987 and early 1988 in several investigations, including Mr. Ponticelli=s: >In December 1987, Freeman provided information from a fellow inmate, Anthony Ponticelli, concerning a double homicide which occurred in November 1987. This information resulted in the discovery of five additional witnesses and the recovery of critical physical evidence.= Furthermore, Inv. Munster indicated that Freeman >was an informant= in cases for him. Inv. Munster stated that the purpose of his letter was >in an effort to gain [Freeman=s] release from the State Prison system on a timely basis.= Motion at 5 (footnotes omitted).

In this motion, Mr. Ponticelli also pled: AAdditionally, during his investigation, Mr. Ashton reviewed files produced by the Florida Department of Corrections on May 20, 2006, concerning Dennis Freeman. On April 11, 1988, prior to Mr. Ponticelli=s trial, Linda Freeman who was married to Dennis Freeman, wrote a letter to then-Governor Martinez concerning her husband=s cooperation in cases and the promises he had been made for his assistance. Two months later, Department of Corrections personnel responded to Mrs. Freeman and indicated that the Department had no authority over the AState Attorneys or Judges@ and thus the Department could not assist Freeman with any of the alleged promises that had been made to him. Though theses letters existed at the time of Mr. Ponticelli=s trial, they were not disclosed to trial counsel and Mrs. Freeman=s name was not

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provided in discovery to trial counsel. Linda Freeman has now confirmed that her ex-husband, Dennis Freeman, directed her to write the letter on his behalf and also directed the content of the letter.@ Motion at 6 (footnote omitted).

Finally, Mr. Ponticelli pled: AWarren Brown confirmed much of his brother=s evidentiary hearing testimony. Specifically, Warren Brown admitted that he had met Mr. Ponticelli on Thanksgiving evening and had Apartied@ with him. Warren Brown consumed large amounts of alcohol throughout the weekend and admitted to smoking cocaine with Mr. Ponticelli. Warren Brown failed to mention the cocaine use during Mr. Ponticelli=s trial because he did not want to get in any trouble and no one made him aware of the importance of Mr. Ponticelli=s drug use to the case. Warren Brown also recalled that he and his brother and friends, Brian and Keith, discussed the events that occurred with Mr. Ponticelli prior to the trial. Warren Brown believed that in fact he recalled very little of Mr. Ponticelli=s alleged statements because he (Warren Brown) was intoxicated much of the weekend. He believes that he obtained most of the information he testified about from the conversations with his brother, Keith Dotson and Brian Burgess. The only detail Warren Brown independently and specifically recalled at the time of his testimony was Mr. Ponticelli=s behavior after he used cocaine because it was >so strange=.@ Motion at 17.

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On October 23, 2007, a case management conference was

held before the Honorable Victor J. Musleh, Senior Judge.

After hearing argument by the parties, Judge Musleh granted

Mr. Ponticelli an evidentiary hearing on all of the claims

pled in his successive Rule 3.851 motion. The hearing was

scheduled for December 4 - 5, 2007.

On November 19, 2007, postconviction counsel for Mr.

Ponticelli filed a motion to continue the second day of the

evidentiary hearing due to the unavailability of witnesses.

Upon returning from vacation on November 26, 2007,

postconviction counsel set out to determine whether Judge

Musleh had had the opportunity to consider the motion and, if

so, if he had ruled on the motion. In the process of

retrieving Judge Musleh=s judicial assistant=s phone number

from the Fifth Judicial Circuit website, postconviction

counsel learned that the trial prosecutor, Sarah Ritterhoff

Williams, f.n.a. Sarah Balius, who is a witness in the current

proceedings, is a county court judge in the Fifth Judicial

Circuit sitting in Marion County.

Based on this fact, on November 28th, Mr. Ponticelli filed

a motion to disqualify Judge Musleh and the Fifth Judicial

Circuit from presiding over his case. Appendix A. In his

motion, Mr. Ponticelli contended:

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Mr. Ponticelli was prosecuted by Sarah Ritterhoff Williams. Presently, Sarah Ritterhoff Williams is a county judge seated in the same circuit as Judge Musleh. Judge Musleh=s professional relationship with Judge Ritterhoff Williams presents a conflict because Judge Ritterhoff Williams will be a witness at Mr. Ponticelli=s evidentiary hearing before Judge Musleh. This conflict extends to all of the judges in the Fifth Judicial Circuit.

Specifically, Mr. Ponticelli has alleged serious prosecutorial misconduct including charges that Judge Ritterhoff Williams presented false evidence and argument to Mr. Ponticelli=s jury and judge at Mr. Ponticelli=s capital trial and committed perjury at the previous postconviction proceedings. Judge Musleh's professional relationship with Judge Ritterhoff Williams may contaminate any factual determinations.

Based upon these allegations of serious misconduct by Judge Ritterhoff Williams it is not plausible or fair to ask another judge of the same circuit to sit in judgement of his fellow judge. And, to make such a request of a judge in the same judicial circuit as Judge Ritterhoff Williams would not be fair to Mr. Ponticelli.

Appendix A, p. 2.

And, in order to demonstrate the legally sufficiency of

his motion, Mr. Ponticelli attached several orders of recusal

in similar situations, as well as this Court=s order in State

v. Farr, Case No. SC05-1389 (Dec. 5, 2006). See Appendix A,

Attachments A - E.

Mr. Ponticelli=s counsel was informed that Judge Musleh

would rule on the motion prior to the commencement of the

hearing on December 4, 2007.

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On the morning of December 4th, the parties appeared

before Judge Musleh and argued the motion to disqualify.

After explaining the basis for the motion and the fact that

Mr. Ponticelli was unaware that his trial prosecutor was now a

judge in the Fifth Judicial Circuit, Judge Musleh asked the

State to respond.2

2The State asserted that a written response had been filed, but neither Judge Musleh or Mr. Ponticelli=s counsel had received a copy of the response at the time of the hearing. Appendix B, p.4.

The State responded: AI would point out, this is the

second motion to disqualify the court.@ Appendix B, p. 4.

While the State=s assertion was technically correct, i.e., Mr.

Ponticelli had previously moved to disqualify Judge Musleh.

That motion had been denied. Despite this fact and the

provision in the rule describing a successive motion, the

State informed Judge Musleh: A[W]e=re not under the initial

motion to disqualify rule, we=re under the second motion to

disqualify rule that allows the Court to actually reach the

merits of the issue.@ Appendix B, p. 7.

As to the timeliness of Mr. Ponticelli=s motion, the State

also misrepresented the rule and told Judge Musleh that the

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rule requires that a motion to disqualify be filed Aten days

after they knew or should have known.@ Appendix B, p. 6.

Thus, the State represented that the timeliness requirement

was a diligence requirement.

Perhaps based on the State=s misrepresentations to Judge

Musleh, the Judge began to argue the merits of Mr. Ponticelli=s

motion with his counsel:

THE COURT: Let me ask. Is your B is your motion based on the fact that we=re fellow judges in the same circuit or something like that?

MS. McDERMOTT: Yes, your Honor.

THE COURT: Okay. That=s not B that=s not true,

though. She=s a B she=s an active sitting judge, effective January 2nd of this year, elected by the people of this circuit. This B yeah, this county, excuse me, county judge.

I=m not elected. I=m appointed by the Florida Supreme Court to serve anywhere in the State of Florida because I became an inactive B well, you don=t call it B sitting judge. My term ended on January 1st, 2400 hours January the 1st, so we=ve never been judges at the same time.

So I=m not for Marion County. I=m a judge for the State of Florida at the will of the Supreme Court to serve anywhere in the State of Florida in county or circuit court. So we=re not sitting judges together and never have been.

Appendix B, p. 7 - 8.3

Judge Musleh then argued with postconviction counsel

about the length of time the initial postconviction

3Mr. Ponticelli=s counsel attempted to correct the State=s misrepresentations and prevent Judge Musleh from arguing with her. See Appendix B, p. 8 - 9; 12 - 13.

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proceedings took. Judge Musleh commented: AGoodness that

first one started around 2000 and lasted six years@4; AShe=s

already testified and B regarding entering an order on that,

and the Florida Supreme Court affirmed the order. Is there

any new stuff that B new evidence or something that she=s going

to have to testify to that hasn=t been covered before?@;

A[W]hen is that supposed to stop?@.

At the conclusion of the hearing Judge Musleh denied the

motion as legally insufficient, but directed Mr. Ponticelli=s

counsel to depose Judge Ritterhoff Williams to determine if

there was anything inconsistent between her earlier testimony

and the allegations made by Mr. Ponticelli in his successive

Rule 3.851 motion. Appendix B, p. 14. Despite the State=s

urging, Judge Musleh did not determine that the motion was

untimely. Appendix B, p. 15, 21.

4In fact, Mr. Ponticelli=s original postconviction proceeding began in mid-2000 and a notice of appeal was filed in December, 2002. Postconviction counsel submitted Mr. Ponticelli=s initial brief to this Court in October, 2003.

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That evening, upon returning to her office, Mr.

Ponticelli=s counsel found a document that had been sent via

facsimile after the hearing that morning. The document was

titled: Response to Successive Motion to Disqualify and in the

body of the pleading, the State alleged: ABecause this is a

successive motion to disqualify, the Court is not precluded

from ruling on the truth of the facts alleged in the [email protected]

Appendix C. The response contained four paragraphs arguing

that Mr. Ponticelli=s motion was not timely because

postconviction counsel was not diligent, and a conclusory

statement that the motion is legally insufficient.

See Appendix C.

On December 8, 2007, Mr. Ponticelli filed another motion

to disqualify Judge Musleh and the Fifth Judicial Circuit.

Appendix D. The basis for the motion was that Judge Musleh

addressed the Atruth of the facts@ rather than simply review

the sufficiency of the motion. Appendix D, p. 5 (AThus,

because Judge Musleh disputed the facts upon which the motion

was premised, another ground for disqualification was

5Mr. Ponticelli=s November 27th motion was not a Asuccessive@ motion as defined by Florida Rule of Judicial Administration 2.330(e). To date, the State has not corrected this misrepresentation with the lower court.

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established and disqualification of himself and the circuit is

required.@).

As to Mr. Ponticelli=s December 8th motion to disqualify,

the State responded on December 17, 2007. Appendix E.

Judge Musleh denied the motion on December 20, 2007.

Appendix F.

On December 10, 2007, undersigned received a pleading

titled: State=s Supplemental Response to Motion to Disqualify.

Though the motion indicates it was served on December 5,

2007, the postmark indicates that it was mailed on December 6,

2007. In the response, the State reargued the timeliness

issue. Appendix G. Specifically the State relied on the

Florida Bar website, updated in August, 2007, showing that Mr.

Ponticelli=s trial prosecutor is currently a member of the

judiciary. Appendix G, p. 4.

The day after Mr. Ponticelli received the State=s supplemental response, Judge

Musleh entered a written order denying Mr. Ponticelli=s November 27th motion for

disqualification. Appendix H. The written order denied the

motion as untimely. Appendix H.

On December 21, 2007, Mr. Ponticelli filed a Motion for

Rehearing of the December 11th Order. Appendix I. In the

motion, Mr. Ponticelli averred:

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11. Apparently, the Court treated the State=s Supplemental Response as a motion for rehearing. The Court provided Mr. Ponticelli no time to be heard on the State=s response and in doing so denied Mr. Ponticelli due process.

12. Thus, Mr. Ponticelli respectfully requests that this Court reconsider its December 11, 2007, Order.

13. Initially, Mr. Ponticelli would point out that the State has failed to inform this Court, and in fact has deliberately misled this Court as to the standard for determining timeliness. The timeliness requirement is not a diligence requirement. Rather, the rule states: AA motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court.@ Fla. R. Jud. Admin. 2.330(e) (emphasis added). There is no diligence required in learning of information that may lead to disqualification. Thus, the timeliness of the motion is simply judges in terms of when the movant learned of the information and whether the motion was filed within ten days of that knowledge.

14. As stated in Mr. Ponticelli=s motion to disqualify, filed on November 28, 2008, he learned of the information on November 26, 2007, thus, under the rule his motion was timely.

15. Even after hearing the State=s misleading and deceptive argument, this Court did not rule that the motion was untimely. And, the State=s argument set forth in its Supplemental Response was essentially the same as was argued on December 4, 2007. Furthermore, any argument not presented on December 4, 2007, must be deemed waived. See Jones v. Butterworth, 701 So. 2d 76, 78 (Fla. 1997)(objection waived if not made at first opportunity); Cannady v. State, 620 So. 2d 165, 170 (Fla. 1993)(the contemporaneous objection rule applies not just to criminal defendants, but to the State as well).

16. Furthermore, should the Court have determined that the State=s supplemental response merited consideration, the Court should have allowed Mr. Ponticelli the opportunity to present argument and evidence on his behalf. The Court=s reversal of

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its prior ruling deprived Mr. Ponticelli of due process.

Appendix I, p. 2 - 3.

On January 10, 2008, the State responded to the motion

for rehearing. Appendix J. Mr. Ponticelli replied to the

State=s response on January 18, 2008. Appendix K. Judge Musleh

denied the motion for rehearing on January 18, 2008. Appendix

L.

III. REASONS FOR GRANTING PETITION

A. INTRODUCTION

1. Florida Rule of Judicial Administration 2.330

Florida Rule of Judicial Administration 2.330 (2007)

governs the procedure and standards for disqualification of a

judge.

Essentially a movant must meet two requirements: 1) the

allegations set forth in the motion must be legally

sufficient; and 2) the motion must be timely.

a. Mr. Ponticelli=s motions were to be determined under the provision for initial motions.

Initially, it is necessary to determine whether a motion

to disqualify is an initial or successive motion since

different standards apply to the court=s determination of the

motion. Rule 2.330(g) makes clear that a movant=s motion is

only considered successive and subject to the more stringent

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requirement that the judge believes Ahe or she is in fact not

fair or impartial in the case@, when Aa judge has been

previously disqualified on a motion for alleged prejudice or

partiality under subdivision (d)(1)@. Fla. R. Jud. Admin.

2.330(g)(emphasis added). Under the rule, a movant=s motion is

not to be construed as successive because he or she has filed

a previous motion to disqualify. What makes a motion to

disqualify successive is whether a previous motion has been

granted disqualifying a judge. See Card v. State, 803 So. 2d

613 (Fla. 2001); J & J Indus., Inc. V. Carpet Showcase Inc.,

723 So. 2d 281 (Fla. 2d DCA 1998).

Though in Mr. Ponticelli=s case he had previously filed a

motion to disqualify, the motion was denied. Therefore,

contrary to the State=s repeated misrepresentations to Judge

Musleh, his November 28th and December 8th motions should have

been considered under subsection (f), the AInitial Motion@

provision, of the rule.

Under Rule 2.330(f):

The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be

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entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

Likewise, in Bundy v. Rudd, 366 So. 2d 440, 442 (Fla.

1978), this Court held:

When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.@

Furthermore, under subsection (f), disqualification is

warranted where the circumstances place a movant, like Mr.

Ponticelli, in fear that he will not receive a fair hearing. Suarez v.

Dugger, 527 So. 2d 191, 192 (Fla. 1988) (disqualification required where the

circumstances are of such a nature that they are Asufficient

to warrant fear on [Mr. Ponticelli=s] part that he would not

receive a fair hearing by the assigned judge.@).

The proper focus of this inquiry is on Amatters from which

a litigant may reasonably question a judge's impartiality

rather than the judge's perception of his [or her] ability to

act fairly and impartially.@ Livingston v. State, 441 So. 2d

1083, 1086 (Fla. 1983); Chastine v. Broome, 629 So. 2d 293,

294 (Fla. 4th DCA 1993). In capital cases, the trial judge

Ashould be especially sensitive to the basis for the fear, as

the defendant's life is literally at stake, and the judge's

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sentencing decision is in fact a life or death matter.@

Livingston, 441 So. 2d at 1086.

b. Timeliness.

A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.

Fla. R. Jud. Admin. 2.330 (e)(2007)(emphasis added).

Contrary to the State=s misrepresentation to Judge Musleh,

the rule=s timeliness requirement is not a diligence

requirement, i.e. it states neither directly nor implicitly

that the ten day rule applies to when a movant should or could

have known of the grounds for disqualification.

B. THE NOVEMBER 28TH MOTION TO DISQUALIFY

On November 28, 2007, Mr. Ponticelli filed a verified

motion to disqualify Judge Musleh and the Fifth Judicial

Circuit from presiding over any further proceedings in his

case. Disqualification is warranted on the basis of Judge

Musleh=s professional association with the trial prosecutor,

Sarah Ritterhoff Williams, who is now a county court judge in

Marion County.

1. The motion was legally sufficient

Mr. Ponticelli=s motion to disqualify Judge Musleh and the

Fifth Judicial Circuit was legally sufficient. In his motion,

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Mr. Ponticelli asserted that his trial prosecutor was now a

county judge in Marion County. This was the same county where

Mr. Ponticelli=s case is scheduled to be heard by Judge Musleh,

a senior judge who handles cases in Marion County.6

6In fact, the Fifth Judicial Circuit=s website indicates that Judge Musleh=s address and phone number are listed in the same building as Judge Ritterhoff Williams.

Mr. Ponticelli=s trial prosecutor, Judge Ritterhoff

Williams, previously testified in Mr. Ponticelli=s

postconviction proceedings. In those proceedings she

testified that she was asked about her handwritten notes

reflecting a conversation she had had with the attorney

representing a jailhouse informant, Dennis Freeman. Judge

Ritterhoff Williams did not believe that the notes

demonstrated that she had given state witness Freeman any

benefits for his testimony. Indeed, at Mr. Ponticelli=s

capital trial, Freeman testified that he had received no

benefits from the State. However, the documents that have now

surfaced provide evidence that Freeman=s testimony at trial and

Judge Ritterhoff William=s testimony in postconviction is false.

Therefore, as Mr. Ponticelli stated in his motion to

disqualify: ABased upon these allegations of serious

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misconduct by Judge Ritterhoff Williams it is not plausible or

fair to ask another judge of the same circuit to sit in

judgement of his fellow judge. And, to make such a request of

a judge in the same judicial circuit as Judge Ritterhoff

Williams would not be fair to Mr. Ponticelli. Mr. Ponticelli

reasonably fears that he will be denied the cold neutrality of

an impartial judge. This fear reasonably extends to all of

the judges of the Fifth Judicial Circuit where Judge

Ritterhoff Williams sits.@

Furthermore, in assessing Mr. Ponticelli=s motion, Judge

Musleh did not follow the directives of Fla. R. Jud. Admin

2.330(f) which only permits the judge to determine the legal

sufficiency of petitioner=s motion and to have refrained from

comments about the facts upon which the motion was based.7 See

7Judge Musleh argued with postconviction counsel about the basis for Mr. Ponticelli=s motion:





I=m not elected. I=m appointed by the Florida Supreme Court to serve anywhere in the State of Florida because I became an inactive B well, you

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Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978)(AWhen a judge

has looked beyond the mere legal sufficiency of a suggestion

of prejudice and attempted to refute the charges of

partiality, he has then exceeded the proper scope of his

inquiry and on that basis alone established grounds for his

disqualification.@); Kielbania v. Jasberg, 744 So. 2d 1027

(Fla. 4th DCA 1997).

Also, Judge Musleh assessed Mr. Ponticelli=s motion from

the judge=s perspective. But, the proper focus of this inquiry

is on "matters from which a litigant may reasonably question a

judge's impartiality rather than the judge's perception of his

don=t call it B sitting judge. My term ended on January 1st, 2400 hours January the 1st, so we=ve never been judges at the same time.


Appendix B, p. 8 - 9.

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[or her] ability to act fairly and impartially." Chastine v.

Broome, 629 So.2d 293, 294 (Fla. 4th DCA 1993).

Mr. Ponticelli=s motion was legally sufficient. His fear

is reasonable, as demonstrated by the numerous other movants

and judges who have found it entirely proper for a judge to

recuse himself from a postconviction proceeding when the judge

has a pre-existing professional relationship with the

defendant's trial attorney or the trial prosecutor.

Most recently, in State v. Victor Farr, Case No. 91-002,

this Court reviewed a case where Judge Vernon Douglas recused

himself when Mr. Farr=s defense counsel filed a motion based on

the fact that the trial attorney and trial prosecutor were

sitting county court judges in the same circuit where the

postconviction proceedings were being held. See Appendix A,

Attachment A. The allegations set forth in Mr. Farr=s motion

concerned what he characterized as improper actions of the

trial prosecutor and trial counsel.

In Mr. Farr=s case, the State filed an appeal with this

Court. In December, 2006, this Court denied the State=s

petition and directed that Mr. Farr=s case be transferred to

another circuit. See Appendix A, Attachment B.

Furthermore, in State v. George Hodges, Case No. 89-2165,

in Hillsborough County, Judge J. Rogers Padgett sua sponte

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recused himself when he learned that the trial attorney who

represented Mr. Hodges was currently a judge in the Thirteenth

Judicial Circuit. Mr. Hodges case was reassigned to a judge

outside of the Thirteenth Judicial Circuit. See Appendix A,

Attachment C. Similarly, in State v. Dailey, case no. 85-7084

CFANO, the postconviction judge sua sponte recused himself due

to the fact that the defendant's trial counsel sat as a judge

in the circuit. Mr. Dailey=s case was transferred to a circuit

court outside of the Sixth Judicial Circuit.

Likewise, in State v. Dean Kilgore, Case No. CF89-

06086A1-XX, and State v. Juan Melendez, Case No. CF84-1016A2,

Judge Dennis P. Maloney of the Tenth Judicial Circuit recused

himself because of circumstances similar to those presented

herein: Mr. Kilgore and Mr. Melenzez, the defendants, were

represented at trial by Roger A. Alcott. Following Mr.

Kilgore and Mr. Melendez= convictions and sentences of death,

Roger A. Alcott assumed a position as a Circuit Judge in the

Tenth Judicial Circuit. Mr. Kilgore and Mr. Melendez=

postconviction attorneys filed motions to disqualify Judge

Maloney and the Tenth Judicial Circuit. Judge Maloney granted

those motions. See Appendix A, Attachment D (as to Defendant

Kilgore).

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Furthermore, in State v. George Brown, case no. CF90-

3054A1, Judge J. Tim Strickland recused himself because:

The defendant has represented that his yet-to-be-filed motion for post-conviction relief will allege ineffective assistance of counsel. The defendant's trial lawyer, Robert L. Doyel, is presently a Tenth Circuit Court Judge.

Knowledge of capital post-conviction matters leads the undersigned to believe that Judge Doyel will be a witness in the evidentiary hearing on the defendant's motion for post-conviction relief. The court also believes that paragraphs one and two of the defendant's motion present legally sufficient reasons for recusal.

Order dated May 14, 1997. Appendix A, Attachment E.

Mr. Ponticelli fears that Judge Musleh and the judges in

th Fifth Judicial Circuit cannot impartially assess Judge

Ritterhoff Williams= credibility in determining factual

issues.8 The order from this Court and other circuits

demonstrate that Mr. Ponticelli has presented a legally

sufficient basis for disqualification. Judge Musleh erred in

denying his motion.

2. The motion was timely

8We now know that contrary to Freeman=s trial testimony and Judge Ritterhoff Williams= postconviction testimony that Freeman received benefits for his testimony. The implications of this recently disclosed evidence are critical to Mr. Ponticelli=s Brady, Giglio and Henry claims. The implications for Judge Ritterhoff Williams are equally critical to her credibility, both as a prosecutor and judge.

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At the December 4, 2007, hearing, Judge Musleh did not

find that Mr. Ponticelli=s motion was untimely. See Appendix B,

p. 14 - 15, 21. It was only in his December 11, 2007, written

order that for the first time, Judge Musleh found that the

motion was untimely.

Rule 2.330 (e) states: AA motion to disqualify shall be

filed within a reasonable time not to exceed 10 days after

discovery of the facts constituting the grounds for the motion

and shall be promptly presented to the court.@ Fla. R. Jud.

Admin. 2.330(e) (emphasis added). There is no diligence

required in learning of information that may lead to

disqualification.9

Thus, the timeliness of the motion is simply judged in

terms of when the movant learned of the information and

whether the motion was filed within ten days of that

knowledge.

9The State repeatedly misled Judge Musleh and maintained that the rule required diligence, i.e., when counsel knew or should have known. See Appendix B, p. 6 - 7, 18; Appendix C; Appendix G; Appendix J. In this regard the State argued that counsel should have known by looking at the phone numbers and addresses contained in her witness list. Or by looking a the Florida Bar website, updated in August, 2007, that listed Judge Ritterhoff Williams as a member of the judiciary. However, none of these arguments matter because the rule does not require diligence. To date, the State has not corrected its misrepresentation to Judge Musleh.

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As stated in Mr. Ponticelli=s motion to disqualify, filed

on November 28, 2008, he learned of the information on

November 26, 2007, thus, under the rule his motion was timely.

C. THE DECEMBER 8TH MOTION TO DISQUALIFY

On December 8, 2007, Mr. Ponticelli filed a verified

motion to disqualify Judge Musleh and the Fifth Judicial

Circuit from presiding over any further proceedings in his

case. Disqualification is warranted on the basis of Judge

Musleh=s argument and comments made at the December 4, 2007,

hearing.

1. The motion was legally sufficient

Mr. Ponticelli=s motion to disqualify Judge Musleh and the

Fifth Judicial Circuit was legally sufficient. In Bundy v.

Rudd, 366 So. 2d 440, 442 (Fla. 1978), this Court held that:

AWhen a judge has looked beyond the mere legal sufficiency of

a suggestion of prejudice and attempted to refute the charges

of partiality, he has then exceeded the proper scope of his

inquiry and on that basis alone established grounds for his

disqualification.@

Likewise, in Rogers v. State, 630 So. 2d 513, 515 (Fla.

1993), this Court reiterated that when a judge argues with

counsel about the allegations contained in a motion to

24

disqualify, that those actions can also provide the basis for

a motion to disqualify.

At the December 4, 2007, hearing, Judge Musleh disputed

the allegations facts in Mr. Ponticelli=s motion:





I=m not elected. I=m appointed by the Florida Supreme Court to serve anywhere in the State of Florida because I became an inactive B well, you don=t call it B sitting judge. My term ended on January 1st, 2400 hours January the 1st, so we=ve never been judges at the same time.


Appendix B, p. 8 - 9.

Judge Musleh then argued with postconviction counsel

about the length of time the initial postconviction

proceedings took. Judge Musleh commented: AGoodness that

first one started around 2000 and lasted six years@; AShe=s

already testified and B regarding entering an order on that,

and the Florida Supreme Court affirmed the order. Is there

any new stuff that B new evidence or something that she=s going

25

to have to testify to that hasn=t been covered before?@;

A[W]hen is that supposed to stop?@. See Appendix B, p. 11 - 12,

16 - 17.

Postconviction counsel reminded Judge Musleh, while he

was arguing with her, that Athe only issue is whether or not

the motion is legally sufficient.@ Appendix B, p. 9 - 10. In

fact, postconviction counsel told Judge Musleh:

[F]rankly, we=re in a position here where the only issue is whether or not the motion is legally sufficient. And to be B arguing it B I think in and of itself is improper.

Appendix B, p. 14. Thereafter, Judge Musleh continued to

argue with counsel about his interpretation of the current

situation. See Appendix B, p. 14.

And, after the motion was denied, postconviction counsel

requested a continuance of the evidentiary hearing. At that

point Judge Musleh again became combative with postconviction

counsel:

THE COURT: Well, I gave you an evidentiary hearing. I=ve already ruled that you=re entitled to an evidentiary hearing. Do you want to go back and B do you want another judge to start from way back then? Well, they may not give you an evidentiary hearing. Is that what you want to do? * * *

And I=m not going to have this case go on like it=s been for eighteen years. I think that=s long

26

enough. Twelve B ninteen years, excuse me, almost twenty years. It=s not going to go on forever.

MS. McDERMOTT: Okay. So --

THE COURT: When do you want to do that?

MS. McDERMOTT: I mean, I can try to make arrangements to do that as quickly as possible.

THE COURT: Well, I don=t know what quickly as possible B that may be in the year 2010, that=s the way this case has run.

Appendix B, P. 16 - 17.

As in Rogers, AAs a result of the judge=s actions, the

proceeding degenerated into a heated, contentious melee . .

.@. Rogers, 630 So. 2d at 516. Likewise, in Mr. Ponticelli=s

case Judge Musleh questioned postconviction counsel and

disputed the facts as set forth in the motion. And, Judge

Musleh and the State Aunited together@ against Mr. Ponticelli.

Id.

Mr. Ponticelli=s motion to disqualify was legally

sufficient and should have been granted.

2. The motion was timely

The facts that provided the basis for Mr. Ponticelli=s

motion to disqualify arose at the December 4, 2007, hearing.

Mr. Ponticelli filed his motion four days later. The motion

was timely.

D. CONCLUSION

27

Under the circumstances, Mr. Ponticelli has a reasonable

fear that he will not receive the benefit of a neutral and

impartial judge. Mr. Ponticelli requests that the Court

either reverse the order denying disqualification or grant the

writ and order the disqualification of Judge Musleh.

WHEREFORE, Mr. Ponticelli respectfully urges that the

Court enter an order to show cause, and thereafter either

reverse the denial of the motion to disqualify or enter a writ

prohibiting Judge Musleh and the other judges in the Fifth

Judicial Circuit from hearing any further proceedings in this

case, direct that the case be assigned by random selection to

another judge outside of the Fifth Judicial Circuit, and grant

any other relief as deemed just and proper by the Court.

Respectfully submitted,

_______________________ LINDA McDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 141 N.E. 30th Street Wilton Manors, FL 33334 (850) 322-2172

I HEREBY CERTIFY that a true copy of the foregoing

pleading has been furnished by United States Mail, first class

28

postage prepaid, to The Honorable Victor J. Musleh, Circuit

Court Judge,

110 N.W. First Avenue, Ocala, FL 34475; Kenneth Nunnelley,

Senior Assistant Attorney General, 444 Seabreeze Blvd., 5th

Floor, Daytona Beach, FL 32118; Rock E. Hooker, Assistant

State Attorney 19 N.W. Pine Avenue, Ocala, FL 34475, on

February 1, 2008.

LINDA McDERMOTT

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