Dana S. Cannon v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1626
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DANA S. CANNON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.
July 9, 2019
PER CURIAM.
In Cannon v. State, 206 So. 3d 831 (Fla. 1st DCA 2016), we
reversed the order denying Appellant’s motion to set aside the
denial of her rule 3.850 motion and remanded for an evidentiary
hearing before a different judge on Appellant’s claim that the judge
who denied the rule 3.850 motion was biased against her based on
an offhand comment the judge made about one of her attorneys.
After the hearing on remand, the postconviction court entered a
detailed order finding that the judge made the comment in jest;
that the judge did not harbor any animus towards Appellant’s
attorney; and that there was no indication that the result of the
postconviction proceeding was unreliable because the judge held a
nine-hour evidentiary hearing on the rule 3.850 motion and
explained his ruling in a detailed order that was per curiam
affirmed on appeal in Cannon v. State, 166 So. 3d 768 (Fla. 1st
DCA 2015) (table). These findings are supported by competent
substantial evidence, and based on the findings, we find no error
in the court’s denial of Appellant’s motion to set aside the denial of
her rule 3.850 motion.
That said, this case highlights why judges should avoid
attempts at humor while on the bench, even if it is intended for the
laudable purpose of reducing unnecessary tension in the
courtroom. The judge’s offhand comment here spawned years of
postconviction litigation and multiple appeals in this case, * all of
which could have been avoided if the judge had simply exercised a
little self-restraint. We understand that some judges have a more
relaxed style on the bench than others, but judicial humor is rarely
as funny as the judge thinks it is, and judicial humor is never
funny when it is at the expense of an attorney or a party. See In
re Kwan, 2019 WL 2223543, at *3 n.1 (Utah 2019) (“It is an
immutable and universal rule that judges are not as funny as they
think they are. If someone laughs at a judge’s joke, there is a
decent chance that the laughter was dictated by the courtroom’s
power dynamic and not by a genuine belief that the joke was
funny.”); Brofman v. Fla. Hearing Care Ctr., Inc., 703 So. 2d 1191,
1192 (Fla. 4th DCA 1997) (“Jokes by the trial judge are a risky
venture in any event, and the closer the joke to the subject matter
of the litigation, the greater the risk that the attempted humor
will, in one way or another, be inappropriate.”); People v. Melton,
750 P.2d 741, 753-54 (Cal. 1988) (“Well-conceived judicial humor
can be a welcome relief during a long, tense trial. Obviously,
however, the court should refrain from joking remarks which the
jury might interpret as denigrating a particular party or his
attorney.”).
AFFIRMED.
LEWIS, WETHERELL, and M.K. THOMAS, JJ., concur.
* The comment also led to a remand for additional proceedings
in a case involving the same judge and attorney but a different
defendant. See Alexander v. State, 210 So. 3d 256 (Fla. 1st DCA
2017).
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Crystal McBee Frusciante, Sunrise, for Appellant.
Ashley Moody, Attorney General, and Virginia Harris, Assistant
Attorney General, Tallahassee, for Appellee.
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