39 Fla. L. Weekly D1259a
disqualify was not legally sufficient — Motion was ruled upon within 30-day
period prescribed by rule, as extended by five-day mailing period applicable
because motion was served by mail — Explanation of proper way to compute
additional time under rule 2.514(b)
District. Case No. 1D13-5370. Opinion filed June 13, 2014. Petition for Writ of
Prohibition and/or Writ of Mandamus — Original Jurisdiction. Counsel: Bruce
Edward McCray, Jr., pro se, Petitioner. Pamela Jo Bondi, Attorney General, and
Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
relief, contending that the trial judge erred in denying his motion seeking her
disqualification, and that he is in any event entitled to reassignment of his
case to a different judge because his motion for disqualification was not acted
upon in a timely fashion. We reject without further comment his claim that his
motion was legally sufficient to warrant disqualification, but write to address
his claim that the motion was not ruled on within 30 days, as Florida Rule of
Judicial Administration 2.330(j) requires.
Rule 2.330(j) provides in relevant part that “[t]he judge shall rule on a motion
to disqualify immediately, but no later than 30 days after service of the
motion. . .,” and McCray’s motion was denied by order of September 16, 2014.
McCray argues that because more than 30 days elapsed between service of his
motion and its disposition, he is entitled to have a new judge assigned in
accordance with the portion of rule 2.330(j) providing that, “[i]f not ruled on
within 30 days of service, the motion shall be deemed granted and the moving
party may seek an order from the court directing the clerk to reassign the
case.”1 We disagree and therefore deny his
Judicial Administration 2.514(b) provides as follows:
(b) Additional time after service by mail or e-mail. When a
party may or must act within a specified time after service and service is made
by mail or e-mail, five days are added after the period that would otherwise
expire under subdivision (a).
where an act was required to be performed within a specified time after service
and service is made by mail, additional time was added to “the prescribed
period.” See, e.g., Fla. R. Civ. P. 1.090(e) (2012); Fla. R. Crim.
P. 3.070 (2012); Fla. R. App. P. 9.420(e) (2012). Under the former rules, five
days would have been added to the 30 day period prescribed by rule 2.330(j).
See Hatfield v. State, 46 So. 3d 654, 655 n.2 (Fla. 2d DCA 2010)
(holding that rule allowing additional time after service by mail extended time
for judge to rule on motion to disqualify, and specifically: “That the judge is
not a party to the underlying proceeding does not affect the requirement in rule
2.330(c)(4) that the service procedures of rule 1.080 be employed.”). The 35th
day following service of petitioner’s motion was Friday, September 13, 2013, and
the motion would have been deemed granted if not acted on by that date.
period “that would otherwise expire under subdivision (a)” of the rule. Thus, it
appears that computing the additional time allowed after service by mail is now
a two-step process. The first step involves determining when the original period
would have expired under subdivision (a) of the rule. Here, the 30th day
following service of McCray’s motion was September 8, 2013. However, because
that was a Sunday, rule 2.514(a)(1)(C) dictates that the period continued to run
until the end of the next day that was not a Saturday, Sunday or legal holiday,
that being Monday, September 9, 2013. In the second step, five days are added to
the result of the computation under subdivision (a), yielding a result of
September 14, 2013. Because that date is a Saturday, rule 2.514(a)(1)(C) is
again implicated and the trial judge’s time for acting on the motion for
disqualification was extended through Monday, September 16, 2013. Accordingly,
the order of September 16, 2013, denying the motion for disqualification was
entered in a timely fashion.
intended to serve the broader purpose of explaining our interpretation of rule
2.514 to the bench, bar and litigants. Upon its adoption in October 2012, Rule
2.514 effectively superseded “any rule of procedure, local rule, court order, or
statute that does not specify a method of computing time.” Fla. R. Jud. Admin
2.514(a). In fact, in addressing the computation of time, the current rules of
procedure governing particular classes of cases for the most part simply
cross-reference rule 2.514. See Fla. R. Civ. P. 1.090(a); Fla. R. Crim.
P. 3.040; Fla. R. Civ. P. — S.V.P. 4.090(a); Fla. Prob. R. 5.042(a); Fla. R.
Traf. Ct. 6.350; Fla. R. Juv. P. 8.180(a); Fla. R. Juv. P. 8.240(a); Fla. R.
Juv. P. 8.630(a); Fla. R. App. P. 9.420(e); Fla. Fam. L. R. P. 12.090.3 Accordingly, assuming we have correctly construed
the rule, the computation methodology described above will apply in a host of
different situations, and as this case exemplifies, may yield different results
than would have obtained under the former rules.
writ of mandamus is DENIED on the merits. (BENTON, WETHERELL, and MARSTILLER,
request for mandamus relief in the form of an order directing the lower tribunal
clerk to reassign McCray’s cases. However, petitioner fails to show that he has
sought an order of reassignment, and thus fails to demonstrate an entitlement to
mandamus relief. See Rowe v. Duetche Bank Nat. Trust Co., 49 So.
3d 1285 (Fla. 1st DCA 2010). Moreover, even if McCray had sought an order
reassigning his cases, our conclusion that the trial judge timely ruled on the
motion for disqualification dictates that he is not entitled to such an order.
of Jud. Admin., Fla. Rules of Civil Pro., Fla. Rules of Crim. Pro., Fla. Rules
of Civil Pro. for Involuntary Commitment of Sexually Violent Predators, Fla.
Probate Rules, Fla. Rules of Traffic Court, Fla. Rules of Juv. Pro., Fla. Rules
of App. Pro., & Fla. Family Law Rules of Pro. — Computation of Time, 95
So. 3d 96 (Fla. 2012).
Procedure 3.040 incorporates only subdivision (a) of rule 2.514. That
distinction is immaterial here, however, because although this matter arises
from a criminal case, motions to disqualify a trial judge are governed by
Florida Rule of Judicial Administration 2.330. The computation procedure of rule
2.514 in its entirety therefore applies.
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