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concluding that the trial judge did not err in denying the defendant's motion to disqualify where the defendant failed to "demonstrate conclusively that the trial judge possessed relevant information `going to some fact affecting the merits of the cause and about which no other witness might testify'"
Summary of this case from Rodriguez v. StateOpinion
No. 81-660.
April 14, 1982.
Appeal from the Circuit Court, Palm Beach County, Lewis Kapner, J.
Philip G. Butler, Jr., West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
We affirm the order revoking defendant's probation together with the trial court's decision not to disqualify itself after the defendant had suggested that the trial judge was a material witness. The two affidavits which accompanied defendant's motion for disqualification failed to demonstrate conclusively that the trial judge possessed relevant information "going to some fact affecting the merits of the cause and about which no other witness might testify." Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934). See also State ex rel. Slora v. Wessel, 403 So.2d 496 (Fla. 4th DCA 1981) (Hurley, J., concurring specially).
In addition, we find no abuse of discretion in the trial court's denial of defendant's motion to set aside his plea and conviction. Accordingly, both orders are AFFIRMED.
LETTS, C.J., and DOWNEY and HURLEY, JJ., concur.