Florida Criminal Appeals and Post-Conviction
Former Prosecutor with 27 Years of Experience
Appeals Lawyer
Former Prosecutor with 27 Years of Experience
Appeals Lawyer

Denial of motion for disqualification reversed on appeal.

posted 2016 | B.D. v. State (Broward)

This is another example of how the appellate lawyer you choose makes all the difference! This case was highly publicized and involved 10 co-defendants accused of operating a boiler room.  The defendants were charged with numerous offenses, including organized scheme to defraud, punishable by 30 years in prison.  Hundreds of thousands of dollars were involved in the fraud.

One of the defendants entered an open plea to the judge, who was known as the toughest judge in the county. Shockingly, this defendant was sentenced to 15 years in prison.  All of the other co-defendants subsequently resolved their case and received supervision and no jail time.

Mr. Forman was hired to help the client withdraw his plea, arguing several grounds, including that the judge was biased against indigent defendants who were unable to afford to pay restitution. This was based upon a recent case that Mr. Forman was very familiar with because he used before to obtain relief. Mr. Forman filed a motion to disqualify the judge based upon this bias.  A motion to mitigate sentence was also filed, arguing that the sentence imposed was disproportionate to the sentences imposed in all of the other cases.

Mr. Forman knew that if the motion for disqualification was granted, the motion to withdraw plea and the motion to mitigate his sentence would have to be heard by a different judge. Mr. Forman had no doubt that the 15 year sentence would be greatly reduced, but only if another judge heard the case. As expected, the judge denied the motion for disqualification.

Knowing that obtaining a new unbiased judge was critical in this case, Mr. Forman filed an appeal – a petition for writ of prohibition – in the appellate court. Mr. Forman was confident that the appeal would be granted because of existing caselaw that was recently decided. Unfortunately, the appellate court made new caselaw two weeks before the ruling on the client’s appeal, a rarity, which resulted in the denial of the writ. The trial court denied the motion to mitigate sentence and the client’s motion to withdraw plea.

The client once again hired Mr. Forman to handle the appeal of the denial of the motion to withdraw plea.  However, Mr. Forman had a clever idea.  He knew that the recent caselaw which was made weeks prior to the filing of his writ of prohibition was pending before the Florida Supreme Court. He also knew that if the Florida Supreme Court reversed that decision, then it would make his appeal more likely to succeed.

Mr. Forman filed his appeal, arguing that the motion to withdraw plea should have been granted. Importantly, he also argued that if the Florida Supreme Court reversed the decision of the new case law, then the client’s case should also be reversed and sent back to a new judge based upon the bias. This was the fallback argument that was presented even though the appellate court already denied the appeal on this issue.

Months passed until finally the Florida Supreme Court reversed the new case law, which opened the door for success in this appeal. After a few more months, the appellate court reversed the denial of the client’s motion for disqualification! The appellate court found that the judge did have a policy of sentencing indigent defendants to harsher sentences. This decision meant that the client will have a new judge to hear his motion to withdraw plea and motion to mitigate!  The client and his family were thrilled, especially since the prosecutor, after congratulating Mr. Forman, indicated that the case could be resolved.  This is another reason why Mr. Forman is one of the most respected criminal appellate lawyers in Florida.

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