DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROMAN CABRIANO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3608
[August 18, 2021]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Daliah Weiss, Judge;
L.T. Case No. 50-2013-CF-008396-AXXX-MB.
Thomas Inskeep of Griffin Inskeep Law LLC, West Palm Beach, for
appellant.
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Roman Cabriano appeals an order denying his Florida Rule of Criminal
Procedure 3.850 motion for post-conviction relief, in which he raised
twelve grounds for relief. He challenges the court’s summary denial of
grounds three, eight, and ten. We affirm as to grounds three and ten
without comment, but we reverse and remand for an evidentiary hearing
as to the claim in ground eight that counsel was ineffective for failing to
move to disqualify the trial judge. 1
Cabriano was charged with sexual battery without physical force or
violence in violation of section 794.011(5), Florida Statutes. The victim,
who was a friend of Cabriano’s step-daughter, was spending the night in
Cabriano’s home when she woke up during the night to find that he had
penetrated her vagina with his fingers. Cabriano raised a defense of
insanity due to involuntary intoxication; he claimed he had taken both
1 The judge who ruled on the motion for post-conviction relief was a successor
judge and did not preside over the trial.
Ambien and Xanax on the night of the incident and did not know what he
was doing.
Before trial, the prosecutor filed a notice of intent to offer evidence
about an incident when Cabriano’s step-daughter woke up during the
night to find that Cabriano had his hand in her pants and was rubbing
her vagina. The prosecutor argued that this evidence would be admissible
to rebut Cabriano’s anticipated defense of insanity due to involuntary
intoxication by showing that he had committed a similar act when he was
not involuntarily intoxicated. The court ruled that the evidence would not
be admissible during the State’s case-in-chief but might be admissible as
rebuttal evidence if the involuntary intoxication defense was actually
raised at trial.
At trial, Cabriano testified on direct examination that he was surprised
and emotional when the victim told him what happened:
I don’t know why she’s saying this. I don’t understand why
she would say this about me, and—I would never hurt her. I
wouldn’t do that; it’s not who I am. It really hurt me that she
says this, and that’s why it’s very hard for me to hear that
someone who would say that I hurt them like that when I
know that deep down in my heart I would not do this. I’m not
that type of person, I’m not that type of guy; I would lay down
my life before anything like that happens. It’s not who I am.
After counsel finished direct examination, the judge excused the jury and
asked the prosecutor if she intended to cross-examine Cabriano about the
incident involving his step-daughter. The prosecutor said she did, and the
judge asked what her argument was. But before she could respond,
defense counsel asked, “As to?,” and the judge explained that it was “clear
to [him]” that Cabriano had “put his character at issue with respect to
prior crimes related to sexual assaults on other people” by testifying that
he was “not that type of person.” Defense counsel and the judge proceeded
to argue the issue; the prosecutor spoke only when the judge prompted
her for additional quotes from Cabriano’s testimony. The judge ultimately
ruled that Cabriano’s testimony had opened the door to cross-examination
about the incident involving his step-daughter. When the prosecutor
brought up the incident on cross-examination, Cabriano denied it. The
judge then allowed the prosecutor to call Cabriano’s step-daughter as a
rebuttal witness to testify about the incident.
2
Cabriano was convicted as charged and sentenced to twelve years in
prison followed by three years of sex offender probation. We affirmed on
direct appeal. Cabriano v. State,
211 So. 3d 147 (Fla. 4th DCA 2017).
In ground eight of his rule 3.850 motion, Cabriano claimed counsel was
ineffective for failing to move to disqualify the trial judge because he
departed from his role as a neutral arbiter and became an advocate for the
State by suggesting that Cabriano’s testimony had opened the door to
cross-examination about the incident involving his step-daughter. The
successor judge summarily denied the claim, adopting the State’s
arguments that there was no legally sufficient basis for disqualification
and that Cabriano had failed to demonstrate prejudice.
This appeal followed. We conclude that Cabriano sufficiently alleged
both deficient performance and prejudice as to ground eight and was
entitled to an evidentiary hearing.
Cabriano sufficiently alleged deficient performance by claiming that
counsel should have moved to disqualify the trial judge because he
departed from his role as a neutral arbiter and became an advocate for the
State. Cabriano alleged that, instead of requiring the prosecutor to argue
that his testimony had opened the door to cross-examination about the
incident involving his step-daughter, the judge took it upon himself to
raise the issue and then made the argument on the prosecutor’s behalf.
The record does not refute Cabriano’s claim that the judge’s actions
created a sufficient concern about his impartiality that counsel should
have moved to disqualify him. We recognize that the prosecutor had
argued before trial that evidence about the incident would be admissible,
but the prosecutor did not raise the issue at trial, and the judge raised a
different argument than the prosecutor had made before trial. See
Cammarata v. Jones,
763 So. 2d 552, 553 (Fla. 4th DCA 2000) (finding
disqualification was required because the judge “suggest[ed] to [plaintiff’s]
counsel alternatives on how to proceed strategically”); Crescent Heights
XLVI, Inc. v. Sea-Air Towers Condo. Ass’n,
729 So. 2d 420, 421 (Fla. 4th
DCA 1999) (finding disqualification was required because the judge
“offer[ed] legal advice” to the plaintiff); see also Chastine v. Broome,
629
So. 2d 293, 295 (Fla. 4th DCA 1993) (“When the judge enters into the
proceedings and becomes a participant, a shadow is cast upon judicial
neutrality so that disqualification is required. . . . [T]he trial judge serves
as the neutral arbiter in the proceedings and must not enter the fray by
giving ‘tips’ to either side.”) (citations omitted).
As for prejudice, Cabriano sufficiently alleged that the trial was
rendered fundamentally unfair, and its outcome unreliable, by the judge’s
3
apparent lack of impartiality and counsel’s failure to move to disqualify
him. Cabriano did not need to show that the prosecutor would not have
pursued the same line of cross-examination, or that the outcome of the
trial would have been different, if counsel had moved to disqualify the
judge. See Thompson v. State,
990 So. 2d 482, 490-91 (Fla. 2008); Goines
v. State,
708 So. 2d 656, 660-61 (Fla. 4th DCA 1998).
Because Cabriano sufficiently pled deficient performance and
prejudice, we reverse the summary denial of ground eight and remand for
an evidentiary hearing.
Affirmed in part, reversed in part, and remanded in part.
MAY, DAMOORGIAN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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