Florida Statute 38.2 - Full Text and Legal Analysis

The 2025 Florida Statutes

Title V
JUDICIAL BRANCH

Chapter 38
JUDGES: GENERAL PROVISIONS

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F.S. 38.02

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.

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Amendments to 38.02

Annotations, Discussions, Cases:

Cases Citing Statute 38.02

Total Results: 54

Rodriguez v. State

919 So. 2d 1252, 2005 WL 1243475

Supreme Court of Florida | Filed: Jan 19, 2006 | Docket: 1678690

Cited 117 times | Published

against one of the parties to the cause." See also § 38.02, Fla. Stat. (2004); Canon 3(E)(1)(b), Code of Jud

Asay v. State

769 So. 2d 974, 2000 WL 854255

Supreme Court of Florida | Filed: Oct 26, 2000 | Docket: 401259

Cited 87 times | Published

constituting the grounds for the motion." Similarly, section 38.02, Florida Statutes (1999), provides that motions

Teffeteller v. Dugger

734 So. 2d 1009, 1999 WL 395697

Supreme Court of Florida | Filed: Mar 4, 1999 | Docket: 1730948

Cited 87 times | Published

find certain mitigating circumstances). [10] Section 38.02, Florida Statutes (1979), provides that a suggestion

Rivera v. State

717 So. 2d 477, 1998 WL 306787

Supreme Court of Florida | Filed: Jun 11, 1998 | Docket: 1681424

Cited 53 times | Published

be filed at "any time before final judgment." § 38.02, Fla. Stat. (1991). The motion must be filed within

Waterhouse v. State

792 So. 2d 1176, 2001 WL 578413

Supreme Court of Florida | Filed: May 31, 2001 | Docket: 1416705

Cited 52 times | Published

the grounds for the motion."[14] Similarly, section 38.02, Florida Statutes (1999), dictates that a motion

Mansfield v. State

911 So. 2d 1160, 2005 WL 1577910

Supreme Court of Florida | Filed: Jul 7, 2005 | Docket: 1751839

Cited 41 times | Published

State, 717 So.2d 477, 481 n. 3 (Fla.1998) (quoting § 38.02, Fla. Stat. (1991)). [8] Additionally, Mansfield

Florida Ex Rel. Attorney General v. United States Department of Health & Human Services

648 F.3d 1235, 53 Employee Benefits Cas. (BNA) 1649, 108 A.F.T.R.2d (RIA) 5728, 2011 U.S. App. LEXIS 16806, 2011 WL 3519178

Court of Appeals for the Eleventh Circuit | Filed: Aug 12, 2011 | Docket: 109943

Cited 33 times | Published

g., Utah Code Ann. § 63M-1-2505.5; Va.Code Ann. § 38.2-3430.1:1; see also Ariz. Const. Art. XXVII, § 2

In Re Estate of Carlton

378 So. 2d 1212

Supreme Court of Florida | Filed: Mar 8, 1979 | Docket: 1794465

Cited 27 times | Published

trial judges, codify this general rule of law. Section 38.02 requires that a suggestion for disqualification

Schwab v. State

814 So. 2d 402, 2002 WL 463873

Supreme Court of Florida | Filed: Mar 28, 2002 | Docket: 2451428

Cited 22 times | Published

State, 452 So.2d 537, 539 (Fla.1984); see also § 38.02, Fla. Stat. (1991) (motions to disqualify must

Grim v. State

971 So. 2d 85, 2007 WL 2873367

Supreme Court of Florida | Filed: Oct 4, 2007 | Docket: 1446940

Cited 17 times | Published

[6] The State argues this claim is waived. See § 38.02, Fla. Stat. (2000) ("[S]uggestions [of disqualification]

State v. Clemmons

150 So. 2d 231

Supreme Court of Florida | Filed: Feb 20, 1963 | Docket: 1452042

Cited 17 times | Published

Legislature itself has done by the enactment of Section 38.02, Florida Statutes, F.S.A. By the cited statute

Steinhorst v. State

636 So. 2d 498, 1994 WL 137900

Supreme Court of Florida | Filed: Apr 21, 1994 | Docket: 1361395

Cited 16 times | Published

the right to recuse the judge was waived. See § 38.02, Fla. Stat. (1991) (suggestion of disqualification

Brown v. St. George Island, Ltd.

561 So. 2d 253, 15 Fla. L. Weekly Supp. 231, 1990 Fla. LEXIS 553, 1990 WL 49770

Supreme Court of Florida | Filed: Apr 19, 1990 | Docket: 1740172

Cited 15 times | Published

there had been a prior disqualification under section 38.02, Florida Statutes (1989), and that neither of

Seay v. State

286 So. 2d 532

Supreme Court of Florida | Filed: Nov 1, 1973 | Docket: 430530

Cited 14 times | Published

disqualification of judges as set forth in Section F.S. 38.02, F.S.A. Under these circumstances the matter

National Collegiate Athletic Ass'n v. Associated Press

18 So. 3d 1201, 37 Media L. Rep. (BNA) 2400, 2009 Fla. App. LEXIS 14605, 2009 WL 3128743

District Court of Appeal of Florida | Filed: Oct 1, 2009 | Docket: 374769

Cited 13 times | Published

official business by any agency," see R.I. Gen. Laws § 38-2-2; TEXAS includes "information that is collected

Stein v. State

995 So. 2d 329, 2008 WL 4346490

Supreme Court of Florida | Filed: Sep 25, 2008 | Docket: 1285506

Cited 9 times | Published

to disqualify is governed substantively by section 38.02, Florida Statutes (2002), which provides in

Data Lease Fin. Corp. v. BLACKHAWK HEAT. & P. CO. INC.

325 So. 2d 475

District Court of Appeal of Florida | Filed: Dec 12, 1975 | Docket: 1670755

Cited 9 times | Published

of timeliness constitutes a waiver. Fla. Stat. § 38.02 (1973); See 18A Fla.Jur., Judges, §§ 54 and 62

Hooks v. State

207 So. 2d 459

District Court of Appeal of Florida | Filed: Jan 31, 1968 | Docket: 463279

Cited 8 times | Published

facts in that particular case warrant". F.S. Section 38.02, F.S.A. provides that "if the truth of any such

Hendrix v. State

637 So. 2d 916, 1994 WL 137884

Supreme Court of Florida | Filed: Apr 21, 1994 | Docket: 1521515

Cited 6 times | Published

refusing to recuse himself in violation of section 38.02, Florida Statutes (1989),[4] and Canon 3(C)

St. George Island, Ltd. v. Rudd

547 So. 2d 958, 1989 WL 80720

District Court of Appeal of Florida | Filed: Jul 18, 1989 | Docket: 1474511

Cited 6 times | Published

previous disqualification was made pursuant to section 38.02, Florida Statutes, which expressly provides

Driver v. State

46 So. 2d 718, 1950 Fla. LEXIS 930

Supreme Court of Florida | Filed: Jun 2, 1950 | Docket: 1667777

Cited 6 times | Published

sustain their position. Pertinent provisions of Section 38.02, supra, are viz.: In any cause in any court

Tillman v. State

44 So. 2d 644, 1950 Fla. LEXIS 1285

Supreme Court of Florida | Filed: Feb 7, 1950 | Docket: 1451995

Cited 6 times | Published

prejudicial. Pursuant to the provisions of Section 38.02, F.S.A., on the 12th day of January, 1949, within

Wilisch v. Wilisch

335 So. 2d 861

District Court of Appeal of Florida | Filed: Aug 3, 1976 | Docket: 1306235

Cited 5 times | Published

wife relied upon the provisions of Fla. Stat. § 38.02, which is, in pertinent part: "In any cause in

Aetna Life & Casualty Company v. Thorn

319 So. 2d 82

District Court of Appeal of Florida | Filed: Sep 30, 1975 | Docket: 444029

Cited 5 times | Published

must then ensue. Appellee urges that Fla. Stat. § 38.02 provides the exclusive remedy for the disqualification

State Ex Rel. Arnold v. Revels

113 So. 2d 218

District Court of Appeal of Florida | Filed: Jun 30, 1959 | Docket: 1490989

Cited 5 times | Published

filing of additional affidavits as provided by Section 38.02, Florida Statutes, F.S.A.; that after announcing

Rosen v. Rosen

576 So. 2d 308, 1990 WL 258778

District Court of Appeal of Florida | Filed: Oct 23, 1990 | Docket: 1242769

Cited 3 times | Published

supported by a legally sufficient affidavit. See § 38.02, Fla. Stat. (1989); Fla.R.Civ.P. 1.432. [3] A

Gilbert & Caddy, P.A. v. JP Morgan Chase Bank, N.A.

193 F. Supp. 3d 1294, 2016 U.S. Dist. LEXIS 183865, 2016 WL 4613388

District Court, S.D. Florida | Filed: Jun 15, 2016 | Docket: 64309452

Cited 2 times | Published

ECF No. [135], the notification provision at section 38.2 of the OSA conceivably applies to the Sacks

Denise E. Mooney v. Joy R. Webster

812 F.3d 1276, 2016 WL 537076

Court of Appeals for the Eleventh Circuit | Filed: Feb 11, 2016 | Docket: 3035578

Cited 2 times | Published

26-2-105(b); Tex. Prop.Code § 42.0021(a); Va.Code Ann. § 38.2-5604(B). 6 . In Bonner v

Corie v. City of Riviera Beach

954 So. 2d 68, 2007 WL 1062560

District Court of Appeal of Florida | Filed: Apr 11, 2007 | Docket: 1652035

Cited 2 times | Published

to section 38.02, Florida Statutes, and Florida Code of Judicial Conduct Canon 3E. Section 38.02, Florida

Insurdata Marketing Services, LLC. v. Healthplan Services, Inc.

352 F. Supp. 2d 1252, 2005 U.S. Dist. LEXIS 1333, 2005 WL 147393

District Court, M.D. Florida | Filed: Jan 10, 2005 | Docket: 2146273

Cited 2 times | Published

Speidel, and Stipanowich, 4 Federal Arbitration Law § 38.2.2.2 (1994) ("The common law method of enforcement

United States v. Wright

117 F.3d 1265, 1997 U.S. App. LEXIS 18944

Court of Appeals for the Eleventh Circuit | Filed: Jul 24, 1997 | Docket: 232918

Cited 2 times | Published

members of the unorganized militia. Cf. Ga.Code Ann. § 38-2-277(a) (1995) (prohibiting any “body of men other

Steinhorst v. State

695 So. 2d 1245, 1997 WL 296969

Supreme Court of Florida | Filed: Jun 5, 1997 | Docket: 424998

Cited 2 times | Published

Steinhorst did not waive his claim pursuant to section 38.02, Florida Statutes (1991)[8] and rule 3.850.

Peebles v. Smith

291 So. 2d 102

District Court of Appeal of Florida | Filed: Mar 12, 1974 | Docket: 2550243

Cited 2 times | Published

relator appears to come within the purview of Section 38.02, Florida Statutes, F.S.A., and the other ground

Jackson v. Leon County Elections Canvassing Board

214 So. 3d 705, 2016 Fla. App. LEXIS 17635

District Court of Appeal of Florida | Filed: Nov 23, 2016 | Docket: 60264226

Cited 1 times | Published

(Fla. 4th DCA 1975) (motion untimely under section 38.02, Florida Statutes, because it was “filed more

D.H. Ex Rel. J.R. v. Department of Children & Families

12 So. 3d 266, 2009 Fla. App. LEXIS 5803, 2009 WL 1383344

District Court of Appeal of Florida | Filed: May 19, 2009 | Docket: 1646752

Cited 1 times | Published

against one of the parties to the cause"). See also § 38.02, Fla. Stat. (2007). A "material witness" is one

Dr. Erwin D. Jackson v. Leon County Elections Canvassing Board

District Court of Appeal of Florida | Filed: Apr 10, 2017 | Docket: 4670974

Published

(Fla. 4th DCA 1975) (motion untimely under section 38.02, Florida Statutes, because it was “filed more

Cannon v. State

206 So. 3d 831, 2016 Fla. App. LEXIS 18578

District Court of Appeal of Florida | Filed: Dec 16, 2016 | Docket: 63631166

Published

Florida Supreme Court looked in Steinhorst, see § 38.02, Florida Statutes (2015) (providing a thirty-day

State of Florida v. U.S. Department of HHS

Court of Appeals for the Eleventh Circuit | Filed: Aug 12, 2011 | Docket: 2905959

Published

, Utah Code Ann. § 63M-1-2505.5; Va. Code Ann. § 38.2-3430.1:1; see also ARIZ. CONST . Art. XXVII, §

Adventist Hlth. v. Fl. Birth-Related Injury

865 So. 2d 561, 2004 WL 19485

District Court of Appeal of Florida | Filed: Jan 2, 2004 | Docket: 1231502

Published

in all activities of daily living. Va.Code Ann. § 38.2-5001 (Michie 2003) (emphasis added). [5] Appellees

Judicial Watch, Inc. v. Carroll

801 So. 2d 110, 2001 Fla. App. LEXIS 14122, 2001 WL 1190880

District Court of Appeal of Florida | Filed: Oct 3, 2001 | Docket: 64810554

Published

recusal in the trial court was untimely filed. See § 38.02, Fla. Stat. (1999); Fla. R. Jud. Admin. 2.160(e);

Gilbert v. Florida Birth-Related Neurological Injury Compensation Ass'n

724 So. 2d 688, 1999 Fla. App. LEXIS 472, 1999 WL 22730

District Court of Appeal of Florida | Filed: Jan 22, 1999 | Docket: 64785591

Published

following provision in its exclusivity clause, § 38.2-5002: D. Notwithstanding anything to the contrary

Bryan v. USAA Casualty Insurance Co.

673 So. 2d 72, 1996 Fla. App. LEXIS 3326, 1996 WL 148078

District Court of Appeal of Florida | Filed: Apr 3, 1996 | Docket: 64764492

Published

AND REMANDED. KLEIN and GROSS, JJ., concur. . Section 38.2-2206, Code of Virginia Annotated, provides:

Douglass v. Douglas

633 So. 2d 1166, 1994 Fla. App. LEXIS 2517, 1994 WL 86481

District Court of Appeal of Florida | Filed: Mar 21, 1994 | Docket: 64747038

Published

second ground for disqualification was based on section 38.02 which allows for disqualification of a judge

St. George Island, Ltd. v. Rudd

553 So. 2d 772, 14 Fla. L. Weekly 2926, 1989 Fla. App. LEXIS 7107, 1989 WL 152167

District Court of Appeal of Florida | Filed: Dec 19, 1989 | Docket: 64646963

Published

currently assigned judge would be a violation of F.S. § 38.02. Judge Gary granted the motions without explanation

St. George Island, Ltd. v. Rudd

547 So. 2d 961, 14 Fla. L. Weekly 1942, 1989 Fla. App. LEXIS 4764, 1989 WL 97694

District Court of Appeal of Florida | Filed: Aug 16, 1989 | Docket: 64644445

Published

only the first is arguably cognizable under section 38.02, while the other three obviously concern possible

Ago

Florida Attorney General Reports | Filed: Dec 30, 1988 | Docket: 3256954

Published

grounds and procedures for disqualifying a judge. Section 38.02, F.S., states that: In any cause in any

In re Advisory Opinion to the Governor

290 So. 2d 473, 1974 Fla. LEXIS 4412

Supreme Court of Florida | Filed: Feb 21, 1974 | Docket: 64537368

Published

thereof, on account of “interest” under Fla.Stat. § 38.02, F.S.A., unless on grounds other than the mere

Furnell v. State

206 So. 2d 23, 1967 Fla. App. LEXIS 5423

District Court of Appeal of Florida | Filed: Dec 1, 1967 | Docket: 64503690

Published

disqualification pursuant to Florida Statutes § 38.02, F.S.A., alleging that the judge would be a material

State ex rel. Cannon v. Churchwell

195 So. 2d 599, 1967 Fla. App. LEXIS 5361

District Court of Appeal of Florida | Filed: Feb 15, 1967 | Docket: 64499947

Published

solely on the ground of interest under F.S.A. § 38.02. That section-requires only a written suggestion

Cayson v. Hassfurder

253 F. Supp. 744, 1966 U.S. Dist. LEXIS 7756

District Court, M.D. Florida | Filed: Apr 26, 1966 | Docket: 66036016

Published

party of record he must disqualify himself. F.S.A. § 38.02 provides that a party may file a suggestion of

Tri-State Enterprises, Inc. v. Berkowitz

182 So. 2d 40, 1966 Fla. App. LEXIS 5855, 1966 A.M.C. 2462

District Court of Appeal of Florida | Filed: Jan 19, 1966 | Docket: 64495243

Published

apply to general and special masters.” Under F.S. 38.02, F.S.A., a circuit judge is obliged to declare

State ex rel. Ginsberg v. Wiseheart

120 So. 2d 810, 1960 Fla. App. LEXIS 2563

District Court of Appeal of Florida | Filed: May 26, 1960 | Docket: 60194991

Published

situation is one for his disqualification. See § 38.02, Fla.Stat., F.S.A. However, in order that this

Biscayne Associates, Inc. v. Carson

104 So. 2d 871

District Court of Appeal of Florida | Filed: Sep 9, 1958 | Docket: 60190736

Published

allege grounds for disqualification contained in section 38.02, Fla.Stat., F.S.A. Since the defendant did not

Shotkin v. Rowe

100 So. 2d 429

District Court of Appeal of Florida | Filed: Jan 22, 1958 | Docket: 60189258

Published

of the individual judges of this Court under section 38.02, Fla.Stat., F.S.A., and as a motion to transfer