Merchan v. State, 495 So. 2d 855 (Fla. 4th DCA 1986). · Go Syfert
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Merchan v. State, 495 So. 2d 855 (Fla. 4th DCA 1986). Cases Citing This Book View Copy Cite
“he judge may not, in fact, also act as the prosecutor.”
8 citation events (4 in the last 25 years) across 2 distinct courts.
Strongest positive: Turner v. State (fladistctapp, 1999-11-17)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Turner v. State
Fla. Dist. Ct. App. · 1999 · quote attribution · 1 verbatim quote · confidence high
he judge may not, in fact, also act as the prosecutor.
cited Cited as authority (rule) Peters v. State
Fla. · 2008 · confidence medium
Merchan v. State, 495 So.2d 855, 856 (Fla. 4th DCA 1986).
cited Cited as authority (rule) Edwards v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
Merchan v. State, 495 So.2d 855, 856 (Fla. 4th DCA 1986).
discussed Cited as authority (rule) McFadden v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
As we succinctly said in Merchan v. State, 495 So.2d 855, 856 (Fla. 4th DCA 1986), "the judge may not, in fact, also act as the prosecutor." With regard to a judge initiating the introduction of evidence, this court has condemned the practice: "While it is permissible for a trial judge to ask questions deemed necessary to clear up uncertainties as to issues that appear to require it, the trial court departs from a position of neutrality, which is necessary to the proper functioning of the judicial system, when it sua sponte orders the production of evidence that the state itself never sought t…
discussed Cited as authority (rule) Ott v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
Merchan v. State, 495 So.2d 855, 856 (Fla. 4th DCA 1986); LaPuma v. State, 456 So.2d 933 (Fla. 3d DCA 1984), rev. denied, 464 So.2d 555 (Fla.1985); Williams v. State, 406 So.2d 86 (Fla. 1st DCA 1981); Sampson v. State, 375 So.2d 325 (Fla. 2d DCA 1979); § 90.803(7), Fla. Stat. (1989).
cited Cited "see" A.G. v. State
Fla. Dist. Ct. App. · 2019 · signal: see · confidence high
See Merchan v. State , 495 So.2d 855 , 856 (Fla. 4th DCA 1986).
cited Cited "see" A.G. v. State
Fla. Dist. Ct. App. · 2019 · signal: see · confidence high
See Merchan v. State , 495 So.2d 855 , 856 (Fla. 4th DCA 1986).
Retrieving the full opinion text from the archive…
William MERCHAN a/K/a Guillermo Merchan, Appellant,
v.
STATE of Florida, Appellee.
4-86-0165.
District Court of Appeal of Florida, Fourth District.
Oct 8, 1986.
495 So. 2d 855
Per Curiam.
Cited by 7 opinions  |  Published

[*856] Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Noel A. Pelella and Penny H. Brill, Asst. Attys. Gen., West Palm Beach, for appellee.

PER CURIAM.

This is an appeal from an order revoking appellant's probation. The appellant challenges the sufficiency of the evidence as to the alleged violation of probation and the trial court's active role in questioning the witnesses at the revocation hearing. We affirm.

Initially we note that there is evidence in the record that the appellant failed to file several required reports with his probation officer and that, under the circumstances of this case, those failures constituted substantial violations of the probationary scheme set up to supervise appellant's activities.

We also find no error in the trial court's action in conducting the probation hearing. The appellant did not seek to disqualify the trial judge, but only objected to the judge's questioning of the witnesses. The revocation proceedings were initiated by an affidavit of violation of probation executed by the probation officer. This affidavit, in turn, resulted in a warrant executed by the trial court judge referring to the probation officer's sworn allegations and commanding the sheriff to arrest appellant and bring him before the judge to answer the allegations. In practice, it appears that the state, through a prosecutor, actually prosecutes the alleged violations and, of course, the defendant is entitled to counsel for his defense, and had active counsel here. Probation revocation proceedings have been described as informal and not requiring strict adherence to the formal rules of evidence. Freiheit v. State, 458 So.2d 1172 (Fla. 4th DCA 1984). However, while probation revocation proceedings need not be conducted with the same formality as a criminal trial, the requirement that the factfinder be neutral and detached still applies, and requires the roles of prosecutor and judge to remain separate and distinct. This does not mean that a judge may not conduct the proceedings in an informal manner and ask questions relevant to the issues being tried. However, the judge may not, in fact, also act as the prosecutor.

In this case the appellant focuses particular attention on the trial court's statements before questioning the probation officer. Although we have some concern for the language used by the judge in stating that he could act as the "prosecutor" of probation violations, our examination of the entire record reflects a fair and balanced effort by the judge to resolve the matter fairly, but without undue delay. Our affirmance is predicated upon our conclusion that, while his choice of words was inappropriate, the trial judge here did not in fact assume the role of prosecutor.

ANSTEAD and GLICKSTEIN, JJ., and WARNER, MARTHA C., Associate Judge, concur.