Third District Court of Appeal
State of Florida
Opinion filed January 9, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-400
Lower Tribunal No. 17-2384
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M.W., a juvenile,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Orlando A.
Prescott, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.
Ashley Brooke Moody, Attorney General, and Natalia Costea, Assistant
Attorney General, for appellee.
Before SALTER, SCALES and LUCK, JJ.
SCALES, J.
After finding M.W., a juvenile, guilty of petit theft, the trial court withheld
adjudication and issued a judicial warning. M.W. appeals on the lone ground that
the trial judge “entered the fray” during the trial and sacrificed trial court neutrality.
Because we conclude that the trial judge did not overstep his obligation to remain
neutral and impartial, we affirm the order on appeal.
The State charged M.W. in a one-count petition for delinquency after M.W.
was arrested for shoplifting headphones at an Apple Store. According to statute, “if
the property stolen is valued at $100 or more, but less than $300, the offender
commits petit theft in the first degree.” § 812.014(2)(e), Fla. Stat. (2017). At trial,
the State was examining the store security officer who arrested M.W. when the
following exchange occurred:
WITNESS: We basically, because he is a juvenile we have [to]
call the parent. And the fact that the amount was 299.95 –
DEFENSE: Objection, hearsay.
JUDGE: Establish how he knows.
STATE: Your Honor, he has personal knowledge.
JUDGE: Establish.
Thereafter, the State asked the appropriate set of questions to establish the
value of the headphones at $299.95. On appeal, M.W. argues that this exchange
shows the trial judge entering the fray to an impermissible degree in order to
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establish a key fact of the proceeding. Conceding that the defense at trial lodged no
objection to the trial court’s participation in this exchange, M.W. further argues
fundamental error.
A trial court owes a duty of neutrality to the parties and may not favor one
side or the other. J.L.D. v. State,
4 So. 3d 24, 26 (Fla. 2d DCA 2009). In J.L.D., a
juvenile was adjudicated delinquent for grand theft of a motor vehicle. During the
restitution phase of the trial, the trial judge took over the questioning of witnesses in
an effort to establish the amount of damages. The Second District concluded that the
trial judge “departed from a position of neutrality in an attempt to elicit testimony in
support of the restitution award.”
Id. at 26. The Second District, however,
determined that the error was harmless because the trial court’s conduct did not
increase the restitution award.
Id.
In Lyles v. State,
742 So. 2d 842, 843 (Fla. 2d DCA 1999), the Second District
determined that a trial judge, in a probation revocation proceeding, “committed
fundamental error by sua sponte ordering Lyles’ fingerprints for the purpose of
identification and bifurcating the hearing to allow additional testimony.”
Id. at 843.
The extent to which the trial judge intruded in the proceeding led the Second District
to conclude that the defendant was deprived of an impartial judge. Id.; see also
Sparks v. State,
740 So. 2d 33, 36 (Fla. 1st DCA 1999).
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M.W. cites to both J.L.D. and Lyles to establish that a trial judge’s decision
to enter the fray may rise to the level of fundamental error. M.W. supports these
cases with several, other non-fundamental error cases that confirm the proposition
that a trial court may not breach neutrality. See Seago v. State,
23 So. 3d 1269, 1272
(Fla. 2d DCA 2010) (holding that it was improper for the trial judge to suggest to a
witness that her testimony must be identical to that of her pretrial deposition); Evans
v. State,
831 So. 2d 808, 811 (Fla. 4th DCA 2002) (holding that the trial judge
impermissibly suggested during cross-examination that the prosecution inquire into
defendant’s immigration status); Asbury v. State,
765 So. 2d 965, 965 (Fla. 4th DCA
2000) (holding that, at a suppression hearing, the trial judge impermissibly prompted
the State to present evidence and recall witnesses).
In the instant case, the trial judge did not enter the fray to an extent or a
magnitude close to the intrusions of the trial judges in M.W.’s cited cases. In this
instance, the trial judge merely told counsel for the State to lay a proper predicate
for the evidence the State knew it was required to present. The trial judge neither
asked a question of the witness nor told the State which question to ask of the
witness. In other words, the trial judge did not cross a line and assume the role of
the prosecutor. Here, the judge’s conduct fell within a trial court’s latitude to regulate
the course of a trial in his courtroom. Hahn v. State,
58 So. 2d 188, 191 (Fla. 1952);
R.W. v. Dep’t of Children & Families,
189 So. 3d 978, 980 (Fla. 3d DCA 2016). It
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also fell within the right of a trial judge to “exercise reasonable control” over the
interrogation of witnesses. See § 90.612(1), Fla. Stat. (2017).
Because we find that the trial judge did not sacrifice neutrality or impartiality
during the trial below, we affirm.
Affirmed.
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