38.02
Suggestion of disqualification; grounds; proceedings on suggestion and effect.
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38.02 Suggestion of disqualification; grounds; proceedings on suggestion and effect.—In any cause in any of the courts of this state any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at any time before final judgment, if the case be one at law, and at any time before final decree, if the case be one in chancery, show by a suggestion filed in the cause that the judge before whom the cause is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto, or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in said cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to said cause, but such an order shall not be subject to collateral attack. Such suggestions shall be filed in the cause within 30 days after the party filing the suggestion, or the party’s attorney, or attorneys, of record, or either of them, learned of such disqualification, otherwise the ground, or grounds, of disqualification shall be taken and considered as waived. If the truth of any suggestion appear from the record in said cause, the said judge shall forthwith enter an order reciting the filing of the suggestion, the grounds of his or her disqualification, and declaring himself or herself to be disqualified in said cause. If the truth of any such suggestion does not appear from the record in said cause, the judge may by order entered therein require the filing in the cause of affidavits touching the truth or falsity of such suggestion. If the judge finds that the suggestion is true, he or she shall forthwith enter an order reciting the ground of his or her disqualification and declaring himself or herself disqualified in the cause; if the judge finds that the suggestion is false, he or she shall forthwith enter the order so reciting and declaring himself or herself to be qualified in the cause. Any such order declaring a judge to be disqualified shall not be subject to collateral attack nor shall it be subject to review. Any such order declaring a judge qualified shall not be subject to collateral attack but shall be subject to review by the court having appellate jurisdiction of the cause in connection with which the order was entered.
History.—s. 3, ch. 16053, 1933; CGL 1936 Supp. 4155(2); s. 1, ch. 26890, 1951; s. 6, ch. 63-559; s. 206, ch. 95-147.
Notes of Decisions
Cited in 47
cases (1 in the last 5 years), 1950–2025 · leading case: Brown v. St. George Island, Ltd.
Brown v. St. George Island, Ltd. (1990)
“10 only became applicable when there had been a prior disqualification under section 38.02, Florida Statutes (1989), and that neither of Judge Cooksey's disqualifications had taken place under section *255 38.”
Rodriguez v. State (2006)
“" See also § 38.02, Fla. Stat. (2004); Canon 3(E)(1)(b), Code of Jud.”
Waterhouse v. State (2001)
“[15] This statute seems to apply to judges hearing cases in "any of the courts of this state," § 38.02, Fla. Stat. (1999), whereas rule 2.”
Mansfield v. State (2005)
“1998) (quoting § 38.02, Fla. Stat. (1991)). [8] Additionally, Mansfield contends that Judge Perry should have been recused because Judge Perry could have been required to be a witness at the postconviction hearing in respect to his statement.”
Teffeteller v. Dugger (1999)
“[10] Section 38.02, Florida Statutes (1979), provides that a suggestion of disqualification must be filed within thirty days after the party or attorney learns of the ground for disqualification or the ground is considered waived.”
Asay v. State (2000)
“" Similarly, section 38.02, Florida Statutes (1999), provides that motions to disqualify must be filed within thirty days after the party learns of the grounds for disqualification.”
Grim v. State (2007)
“See § 38.02, Fla. Stat. (2000) ("[S]uggestions [of disqualification] shall be filed in the cause within 30 days after the party filing the suggestion, or the party's attorney, or attorneys, of record, or either of them, learned of such disqualification, otherwise the ground, or…”
Schwab v. State (2002)
“160(e) ("A motion to disqualify shall be made 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.”
Rivera v. State (1998)
“" § 38.02, Fla. Stat. (1991). The motion must be filed within 30 days after the movant learned of the alleged grounds for disqualification, "otherwise the ground, or grounds, of disqualification shall be taken and considered as waived.”
Stein v. State (2008)
“A motion to disqualify is governed substantively by section 38.02, Florida Statutes (2002), which provides in relevant part: In any cause in any of the courts of this state any party to said cause .”
D.H. Ex Rel. J.R. v. Department of Children & Families (2009)
“Third, the motion alleged that the judge "is a material witness for or against one of the parties to the cause," requiring his disqualification under Florida Rule of Judicial Administration 2.”
Corie v. City of Riviera Beach (2007)
“Petitioners also make reference to section 38.02, Florida Statutes, and Florida Code of Judicial Conduct Canon 3E.”
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