McGibney v. Smith

UPCHURCH, Chief Judge.

This cause is before this court on a petition for writ of prohibition occasioned by the refusal of the respondent, Judge Smith, to recuse himself after a motion for disqualification was filed. This court ordered a response. Counsel for Judge Smith devoted considerable time and effort to the preparation of a detailed and thoroughly researched brief on the law of disqualification.

Judge Smith argues that the allegations of the motion were insufficient to require disqualification. We disagree and were the motion otherwise in compliance with section 38.10, Florida Statutes (1985), we would issue the writ.

The motion, however, is legally insufficient in that it fails to include an affidavit as required by the statute. An acknowledgment before a notary public is attached to the motion; however, the petitioner merely acknowledges that he executed the motion, he does not swear that the facts alleged are true.

Writ DENIED.

DAUKSCH, J., concurs. COWART, J., concurs in part and dissents in part with opinion.