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Filing # 69684620 E-Filed 03/22/2018 03:52:30 PM
IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT
OSCEOLA COUNTY, STATE OF FLORIDA
CASE NO.
STATE OF FLORIDA,
Petitioner,
v.
Jeanette Dorothy Hadden 2015-MM-2050
Jeinner Moriano 2015-MM-3133
Billy Ray Hogans 2015-MM-4087
Rafael Alberto Lopez 2015-MM-4099
Melissa Morales-Rivera 2016-MM-538
Antony Douglas Noe 2016-MM-1279
Abe Johnny Jones 2016-MM-1348
Jimmy Elias Martinez 2016-MM-2008
Allan B. Merriweather 2016-MM-3207
Sheldon Scott Johnson, II 2016-MM-3333
Kevin Douglas McBride 2016-MM-3601
Eurando Antonio Jones 2016-MM-3623
Olga Desire Martinez 2016-MM-3779
Jose Antonio Osorio 2017-MM-22
Isuain Alexander Luna-Bautista 2017-MM-104
Miguel Oliveras 2017-MM-932
Julio C. Mendez 2017-MM-1349
Chelsea Suzanne Massey 2017-MM-1531
Ryan Richarde Hobbs 2017-MM-1804
Christopher Bernard Mellor 2017-MM-2042
Susanne Rena Palmer 2017-MM-2054
Spencer Charlese Mulholland 2017-MM-2563
David Allen Loshaw 2017-MM-2601
Kevin Hernandez Hernandez 2017-MM-2844
Jeanpierre Luis Hernandez-Medina 2017-MM-3124
William Jimenez-Rodriguez 2017-MM-3159
Moises Evaristo Martinez 2017-MM-3324
William R. Jimenez-Rodriguez 2017-MM-3426George Michael Homes, II 2017-MM-3560
William Boyd McGee 2017-MM-3806
Kenneth Persaud 2017-MM-3811
Jordan Mashell Johnson 2017-MM-3820
Gregory Matthew Hall 2017-MM-3880
Damion Tyreak Kinloch 2017-MM-3887
Michael Keith McGriff 2017-MM-3903
Alicia Moore 2018-MM-20
Jose Abby Moran 2018-MM-39
Alex Jeanty 2018-MM-191
Denis Omar Osorio-Rivera 2018-MM-379
Ibrahim H. Hassan 2018-MM-443
Jeanpierre Luis Hernandez-Medina 2018-MM-534
Michele Lori Panebianco 2018-MM-555
Gary Alan Laine 2018-MM-689
Sean C. Maupin 2018-MM-694
Cassandra Lee Nadeau 2018-MM-706
Damion Tyreak Kinloch 2018-MM-715
Don Ernest Pilgrim ‘ 2018-MM-755
Jordon Gene Hetmanski 2018-MM-762
Mariaelena Molina 2018-MM-763
Roger Nealey I 2018-MM-768
Jean Benson Paul 2018-MM-777
Respondents.
/
PETITION FOR WRIT OF PROHIBITION
COMES NOW, the STATE OF FLORIDA, by and through undersigned
counsel, and moves this Court, pursuant to Florida Rule of Appellate Procedure
9.100, to exercise its original proceeding jurisdiction and enter an order prohibiting
County Court Judge Carol E. Draper from presiding over the above-styled cases.
As grounds for issuing the writ, the State submits the following:PRELIMINARY MATTERS
On March 9, 2018, the State of Florida filed legally sufficient motions to
disqualify Judge Carol E. Draper in the cases listed in the caption above.
(Appendix A). The basis of the motions to disqualify was Judge Draper’s failure to
abide by Chapter 741, Florida Statutes and binding case law; inserting personal
beliefs as to what constitutes Domestic Violence contrary to both Florida Statutes
and case law that was provided; and improperly commenting as to what level of
violence is sufficient to constitute an act of domestic violence battery. The
averments in the sworn pleadings are sufficient to establish an objectively
reasonable fear of bias, and establish a legally sufficient motion to disqualify the
presiding judge. See (Appendix A).
On March 12, 2018, Judge Draper issued an order in each case denying the
Motion to Disqualify Trial Judge stating that the Motion is legally insufficient
and/or untimely. (Appendix C).
THIS COURT’S JURISDICTION
Florida law is well settled that:
prohibition is also clearly recognized as the proper avenue for
immediate review of whether a motion to disqualify a trial judge
has been correctly denied. See Bundy v. Rudd, 366 So. 2d 440, 442
(Fla. 1978) (“Once a basis for disqualification has been established,
prohibition is both an appropriate and necessary remedy.”) (citing
Brown v. Rowe, 96 Fla. 289, 118 20. 9 (Fla. 1928)); Dep’t of Pub.
Safety v. Koonce, 147 Fla. 616, 3 So. 2d 331, 334 (1941); State ex rel.
Bank of America v. Rowe, 96 Fla. 277, 118 So. 5, 8 (1928)
3(‘Prohibition may be an appropriate remedy to prevent judicial action,
whet the judge is disqualified, as well as when the judge is without
jurisdiction in the cause.”)
Sutton v. State, 975 So. 2d 1073, 1076-1077 (Fla. 2008). (emphasis added). This
petition is the proper means to obtain review of the denial of the motions to
disqualify. The standard of review for a writ of prohibition pursuant to a trial court
judge’s failure to grant a properly filed motion to recuse is de novo. See R.M.C. v.
D.C. , 77 So. 3d 234, 236 (Fla. Ist DCA 2012).
THE BASIS FOR GRANTING THE WRIT
The Factual Basis
This petition is based on the following facts, which are taken from the
affidavit filed in support of the motion to disqualify Judge Draper. (Appendix B).
The affidavit of Ninth Judicial Circuit Assistant State Attorney Courtney Walmer
reads, in pertinent part, as follows:
1) On October 9, 2017, the Honorable Carol Draper presided over the
case of State v. ‘Thoma’ Nicholson, 2017-MM-2071,a Domestic
Violence Battery. After a jury trial, the jury found the Defendant guilty
as charged. I was the Assistant State Attorney prosecuting the case.
._., a) After the verdict, I witnessed Judge Draper question the
victim’s credibility. During the victim’s impact statement. Judge
Draper repeatedly interrupted the victim to question her about her
career and her children. During sentencing, Judge Draper remarked on
the record that if this had been a bench trial she would have found the
flefendant not guilty because “the credibility of the victim was
orrible.
b) Judge Draper did not sentence the Defendant to Batterer’s
4Intervention Program because he had previously completed the __
program in 2013 for his prior domestic violence conviction involving
the same victim. Judge Draper sentenced the defendant to two weeks
of probation, in direct violation of Florida Statute 741.281, which
requires 12 months supervised probation on domestic violence battery
cases,
c) The State Attorney’s Office filed an appeal to this illegal
sentence. The appeal is pending (2017-AP-26).
2) On January 9,2018, Judge Draper was the presiding judge in the
case of State v. Juan Maure, 2017-MM-2002, a Domestic Violence
Battery. This case was going forward with a negotiated plea agreed to
by both the State and Defense. I was the Assistant State Attorney
assigned to prosecuting this case.
a) , During the plea, Judge Draper interjected, without any
prompting by the Defense, and questioned how I was going to prove
ne Domestic Violence element. | explained that the defendant and |
victim had resided together as a family in the past, Judge Draper said
she did not find that evidence sufficient to prove the Domestic
Violence element of the plea.
» Judge Draper required that I present testimony by the victim
the following day to prove the Domestic Violence element. I informed
the Court that I may not be able to have the victim come in with such
short notice, and that the case was an agreed upon plea with a factual
basis that met all the necessary elements of the charge. Nevertheless,
Judge Draper reset the plea for the following day.
c) I personally contacted the victim and confirmed that the victim
and defendant had resided together as a family for 10 years and were
in an intimate relationship. The victim was unable to be present the
next day. I informed Judge Draper as an officer of the Court that the
victim had confirmed the domestic relationship and provided the
details. Judge Draper found that this information was insufficient and
said she would only accept a plea to simple battery. I informed
Court that I would not amend the Information and I requested to keep
the case on the trial docket. Judge Draper proceeded with the plea.
d) L asked if I could question the defendant on the record. There
was no objection by defense counsel. I questioned the defendant under
oath and he testified that he was in an intimate relationship with the
victim and that they had lived together as a family in 2008. Judge
Draper found that residing together in 2008 was too far removed to be
considered a family or household member. She went forward with
sentencing the defendant to a simple battery and found that the state
did not prove the Domestic Violence elemént because the defendant
and victim resided together 10 years ago, according to the defendant.
e) The State Attorney's Office filed an appeal to this illegal
sentence. The appeal is pending (2018-AP-1).
3) On February 28, 2018, Judge Draper was the presiding judge in the
5case of State v. Donna Lawrence, 2017-MM-3079, a Domestic
Violence Battery. I was the Assistant State Attorney prosecuting this
case.
a) The facts of this case are that law enforcement noticed a car
stopped without its lights on and blocking traffic. When approaching
the vehicle, law enforcement heard fighting between the driver an
assenger. When the officers were just a few feet from the vehicle,
ey observed the defendant punch the victim three times in the arm
vith a closed-fist. Both officers witnessed the victim cower and place
his arms in a protective position, covering himself, as he was hit. The
defendant told the officer that they were arguing because she found
another female's pants in the backset of the car. The victim in this case
was uncooperative and wanted the charges dropped.
») Prior to jury selection I informed the Court that I would be
proceeding without a victim, Judge Draper asked how I intended to
prove the case without the victim, particularly how I would prove the
victim’s lack of consent to bein; battered, I provided the Court with
the applicable case law. Both officers testified consistently with the
above facts. I called the victim to testily and limited the questioning to
identification and the Domestic Violence relationship with the
defendant. Judge Draper allowed the defense to ask the victim about
the facts of the case over the states repeated objections that it was
outside the scope of direct.
c) The victim called what the defendant did to him a “love tap.”
After granting defense's Judgment of. Acquitial, Judge Draper said
“he [victim] got on the stand and testified that it was a love tap an
that's what we do as couples.” She continued to remark, “I don’t know
of any couple that don't [sic] give the other a love tap every now and
en.
% When Judge Draper explained to the jury that the case had
been dismissed, she said, “This case is over. A love tap is a love tap.
That's not what domestic violence means.”
5) After personally witnessing on multiple occasions Judge Draper
being unwilling to abide by statute and case law in Domestic Violence
cases, I firmly believe that she can no longer sit as a fair and impartial
judge on matters involving Domestic Violence offenses.
(Appendix B).
The affidavit (Appendix B) was filed with the motion to disqualify in each case,
and was before Judge Carol E. Draper when she found that each motion to
disqualify “is legally insufficient and/or untimely.” (Appendix C)THE RELIEF REQUESTED
The State requests that this Court enter its order directing that Judge Carol E.
Draper be disqualified from acting in each of the cases listed above.
ARGUMENT
Florida law is well settled that an initial motion to disqualify a trial judge
shall be granted so long as the motion is legally sufficient. Cave. v. State, 660 So.
2d 705, 707-708 (Fla. 1995); Fla. R. Jud. Admin. 2.330(f). In this case, the State’s
motions satisfied those requirements in that it is in writing; alleges specific facts
and reasons for disqualification; is sworn to by the moving party; and certifies that
the motion is made in good faith. Fla. R. Jud. Admin. 2.330(c). The facts alleged in
support of each motion are set out in detail above and establish a well-grounded
fear that the State will not receive a fair trial in the cases listed above - - that is the
standard for the legal sufficiency of the motions. Cave, supra; Livingston v. State,
441 So. 2d 1083, 1087 (Fla. 1983). The State’s motions met that standard, and
Judge Draper should have granted each motion.
Finally, the Motions for Disqualification were timely. The State’s Affidavit
(Appendix B), paragraphs one and two, sets forth Judge Draper’s course of
conduct in acting biasedly against the State of Florida. Paragraph 3 of Appendix B
sets out the facts that occurred on February 28, 2018, when Judge Draper declared
that a “love tap is a love tap. That’s not what domestic violence means.” JudgeDraper continued to remark that “I don’t know of any couple that don’t [sic] give
the other a love tap every now and then.” It is within ten days of this action, on
March 9, 2018, that the State filed its Motion to Disqualify Trial Judge in each of
the cases noted above (Appendix A), and thus, the State’s motion is timely
pursuant to Rule 2.330(e), Fla. R. Jud. Admin. The Motions were legally sufficient,
and denial of them was error.
CONCLUSION
The motion to disqualify filed by the State in each of the above referenced
cases was legally sufficient - - the facts alleged in the motion establish a well-
founded and objectively reasonable fear that the State cannot receive a fair trial in
each case. That is the standard, and the motions meet it. It was error for the trial
court to deny the motion in each case. This Court should order that Judge Carol E.
Draper shall take no further action in the cases listed above.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true a correct copy of the forgoing Petition for
Writ of Prohibition has been furnished by interoffice mail to the Honorable Carol
E. Draper, County Court Judge, Ninth Judicial Circuit, in and for Osceola County,
Florida, Osceola County Courthouse, Kissimmee, Florida, 34741 and via electronic
mail to Rachel Fernandez, rfernandez@circuit9.org and Division70@circuit9.org,
2 Courthouse Square, Suite 1600, Kissimmee, Florida 34741; Alison Kerestes,
alison@keresteslawfirm.com; service@keresteslawfirm.com, P.O.Box 2193,
Orlando, Florida 32802; James Dougherty, jdougherty@circuit9.org and
Division70@circuit9.org, 2 Courthouse Square, Suite 1600, Kissimmee, Florida
34747; Miguel Ubiles, mubiles@circuit9.org and Division70@circuit9.org, 2
Courthouse Square, Suite 1600, Kissimmee, Florida 34737; Christopher Mack,
attorneychrismack@hotmail.com; servel@sotomack.com, 21 South Clyde
Avenue, Unit 1, Kissimmee, Florida 34741; Lisa Figueroa,
lisa@figeroalawfirm.com, 100 So. Semoran Blvd., Orlando, Florida 32807; Craig
Sonner, craigsonner@earthlink.net; 3001 39" Street, Orlando, Florida 32839;
Rebecca Lewis, rlewis01 @circuit9.org and Division70@circuit9.org, 2 Courthouse
Square, Suite 1600, Kissimmee, Florida 34741; Unknown; Alex Johnson,
9ajohnson@circuit9.org and Division70@circuit9. Org, 2 Courthouse Square, Suite
1600, Kissimmee, Florida 34744; Jessica Travis@lawoffice-Orlando.com, 1513 E.
Livingston Street, Orlando, Florida 32803; Juan A. Salazar, salazarj13@aol.com,
603 Verona Street, Kissimmee, Florida 34741; Jeremiah D. Allen,
jeremiah@jeremiahdallen.com, 200 North Thornton Ave, Orlando, Florida 32801;
Mark A. Arias, attorney@ariaslawoffices.com, 6220 S. Orange Blossom Trial,
Plaza Central, Suite 101, Orlando, Florida 32809; Curtis D. Mendenhall,
mendenhallcurtis@gmail.com, P.O. Box 2629, Orlando, FL 32802-2629; Ernest J.
Mullins, mullinsdiscovery@yahoo.com, 519 West Patrick St., Kissimmee, FL
34741; Matthew Jordan, mjordan@circuit9.org and Division70@circuit9.org, 2
Courthouse Square, Suite 1600, Kissimmee, FL 34747; Amir A. Ladan (Orlando
Office), amir@ladanlaw.com, 121 South Orange Avenue, Suite 1420, Orlando, FL
32801; John Zaleskie, arodriguez@rcSstate.com, jzaleskie@rcSstate.com, 3300
Greenwald Way North, Kissimmee, FL 34741, Chad M Seibel,
Chad.Seibel@DonWaggonerLaw.com; sccyl@donwaggonerlaw.com, 1013
Verona Street, Kissimmee, FL 34147; Lazaro G. Blanco,
blancolawgroup50. ail.com, 1631 East Vine Street, Suite M, Kissimmee, FL
34744, Steven R. Tinsley, pleadings@yourside.com, 12 South Orlando Avenue,
Kissimmee, FL 34741; Rose M Feller, EService@feller-law.com, kaitlin@feller-
10law.com, rose@feller-law.com, 745 Primera Blvd., Suite 1021, Lake Mary, FL
32746; on this 2.2, a day of March, 2018.
Aramis D. Ayala, State Attorney
Ninth Judicial Circuit of Florida
Carol Levin Reiss
Assistant State Attorney
Florida Bar No. 501034
PCF@sa09.org
P.O. Box 1673
415 N. Orange Avenue
Orlando, Florida 32802
(407) 836-2406
11
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Filing # 69684620 E-Filed 03/22/2018 03:52:30 PM IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT OSCEOLA COUNTY, STATE OF FLORIDA CASE NO. STATE OF FLORIDA, Petitioner, v. Jeanette Dorothy Hadden 2015-MM-2050 Jeinner Moriano 2015-MM-3133 Billy Ray Hogans 2015-MM-4087 Rafael Alberto Lopez 2015-MM-4099 Melissa Morales-Rivera 2016-MM-538 Antony Douglas Noe 2016-MM-1279 Abe Johnny Jones 2016-MM-1348 Jimmy Elias Martinez 2016-MM-2008 Allan B. Merriweather 2016-MM-3207 Sheldon Scott Johnson, II 2016-MM-3333 Kevin Douglas McBride 2016-MM-3601 Eurando Antonio Jones 2016-MM-3623 Olga Desire Martinez 2016-MM-3779 Jose Antonio Osorio 2017-MM-22 Isuain Alexander Luna-Bautista 2017-MM-104 Miguel Oliveras 2017-MM-932 Julio C. Mendez 2017-MM-1349 Chelsea Suzanne Massey 2017-MM-1531 Ryan Richarde Hobbs 2017-MM-1804 Christopher Bernard Mellor 2017-MM-2042 Susanne Rena Palmer 2017-MM-2054 Spencer Charlese Mulholland 2017-MM-2563 David Allen Loshaw 2017-MM-2601 Kevin Hernandez Hernandez 2017-MM-2844 Jeanpierre Luis Hernandez-Medina 2017-MM-3124 William Jimenez-Rodriguez 2017-MM-3159 Moises Evaristo Martinez 2017-MM-3324 William R. Jimenez-Rodriguez 2017-MM-3426George Michael Homes, II 2017-MM-3560 William Boyd McGee 2017-MM-3806 Kenneth Persaud 2017-MM-3811 Jordan Mashell Johnson 2017-MM-3820 Gregory Matthew Hall 2017-MM-3880 Damion Tyreak Kinloch 2017-MM-3887 Michael Keith McGriff 2017-MM-3903 Alicia Moore 2018-MM-20 Jose Abby Moran 2018-MM-39 Alex Jeanty 2018-MM-191 Denis Omar Osorio-Rivera 2018-MM-379 Ibrahim H. Hassan 2018-MM-443 Jeanpierre Luis Hernandez-Medina 2018-MM-534 Michele Lori Panebianco 2018-MM-555 Gary Alan Laine 2018-MM-689 Sean C. Maupin 2018-MM-694 Cassandra Lee Nadeau 2018-MM-706 Damion Tyreak Kinloch 2018-MM-715 Don Ernest Pilgrim ‘ 2018-MM-755 Jordon Gene Hetmanski 2018-MM-762 Mariaelena Molina 2018-MM-763 Roger Nealey I 2018-MM-768 Jean Benson Paul 2018-MM-777 Respondents. / PETITION FOR WRIT OF PROHIBITION COMES NOW, the STATE OF FLORIDA, by and through undersigned counsel, and moves this Court, pursuant to Florida Rule of Appellate Procedure 9.100, to exercise its original proceeding jurisdiction and enter an order prohibiting County Court Judge Carol E. Draper from presiding over the above-styled cases. As grounds for issuing the writ, the State submits the following:PRELIMINARY MATTERS On March 9, 2018, the State of Florida filed legally sufficient motions to disqualify Judge Carol E. Draper in the cases listed in the caption above. (Appendix A). The basis of the motions to disqualify was Judge Draper’s failure to abide by Chapter 741, Florida Statutes and binding case law; inserting personal beliefs as to what constitutes Domestic Violence contrary to both Florida Statutes and case law that was provided; and improperly commenting as to what level of violence is sufficient to constitute an act of domestic violence battery. The averments in the sworn pleadings are sufficient to establish an objectively reasonable fear of bias, and establish a legally sufficient motion to disqualify the presiding judge. See (Appendix A). On March 12, 2018, Judge Draper issued an order in each case denying the Motion to Disqualify Trial Judge stating that the Motion is legally insufficient and/or untimely. (Appendix C). THIS COURT’S JURISDICTION Florida law is well settled that: prohibition is also clearly recognized as the proper avenue for immediate review of whether a motion to disqualify a trial judge has been correctly denied. See Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) (“Once a basis for disqualification has been established, prohibition is both an appropriate and necessary remedy.”) (citing Brown v. Rowe, 96 Fla. 289, 118 20. 9 (Fla. 1928)); Dep’t of Pub. Safety v. Koonce, 147 Fla. 616, 3 So. 2d 331, 334 (1941); State ex rel. Bank of America v. Rowe, 96 Fla. 277, 118 So. 5, 8 (1928) 3(‘Prohibition may be an appropriate remedy to prevent judicial action, whet the judge is disqualified, as well as when the judge is without jurisdiction in the cause.”) Sutton v. State, 975 So. 2d 1073, 1076-1077 (Fla. 2008). (emphasis added). This petition is the proper means to obtain review of the denial of the motions to disqualify. The standard of review for a writ of prohibition pursuant to a trial court judge’s failure to grant a properly filed motion to recuse is de novo. See R.M.C. v. D.C. , 77 So. 3d 234, 236 (Fla. Ist DCA 2012). THE BASIS FOR GRANTING THE WRIT The Factual Basis This petition is based on the following facts, which are taken from the affidavit filed in support of the motion to disqualify Judge Draper. (Appendix B). The affidavit of Ninth Judicial Circuit Assistant State Attorney Courtney Walmer reads, in pertinent part, as follows: 1) On October 9, 2017, the Honorable Carol Draper presided over the case of State v. ‘Thoma’ Nicholson, 2017-MM-2071,a Domestic Violence Battery. After a jury trial, the jury found the Defendant guilty as charged. I was the Assistant State Attorney prosecuting the case. ._., a) After the verdict, I witnessed Judge Draper question the victim’s credibility. During the victim’s impact statement. Judge Draper repeatedly interrupted the victim to question her about her career and her children. During sentencing, Judge Draper remarked on the record that if this had been a bench trial she would have found the flefendant not guilty because “the credibility of the victim was orrible. b) Judge Draper did not sentence the Defendant to Batterer’s 4Intervention Program because he had previously completed the __ program in 2013 for his prior domestic violence conviction involving the same victim. Judge Draper sentenced the defendant to two weeks of probation, in direct violation of Florida Statute 741.281, which requires 12 months supervised probation on domestic violence battery cases, c) The State Attorney’s Office filed an appeal to this illegal sentence. The appeal is pending (2017-AP-26). 2) On January 9,2018, Judge Draper was the presiding judge in the case of State v. Juan Maure, 2017-MM-2002, a Domestic Violence Battery. This case was going forward with a negotiated plea agreed to by both the State and Defense. I was the Assistant State Attorney assigned to prosecuting this case. a) , During the plea, Judge Draper interjected, without any prompting by the Defense, and questioned how I was going to prove ne Domestic Violence element. | explained that the defendant and | victim had resided together as a family in the past, Judge Draper said she did not find that evidence sufficient to prove the Domestic Violence element of the plea. » Judge Draper required that I present testimony by the victim the following day to prove the Domestic Violence element. I informed the Court that I may not be able to have the victim come in with such short notice, and that the case was an agreed upon plea with a factual basis that met all the necessary elements of the charge. Nevertheless, Judge Draper reset the plea for the following day. c) I personally contacted the victim and confirmed that the victim and defendant had resided together as a family for 10 years and were in an intimate relationship. The victim was unable to be present the next day. I informed Judge Draper as an officer of the Court that the victim had confirmed the domestic relationship and provided the details. Judge Draper found that this information was insufficient and said she would only accept a plea to simple battery. I informed Court that I would not amend the Information and I requested to keep the case on the trial docket. Judge Draper proceeded with the plea. d) L asked if I could question the defendant on the record. There was no objection by defense counsel. I questioned the defendant under oath and he testified that he was in an intimate relationship with the victim and that they had lived together as a family in 2008. Judge Draper found that residing together in 2008 was too far removed to be considered a family or household member. She went forward with sentencing the defendant to a simple battery and found that the state did not prove the Domestic Violence elemént because the defendant and victim resided together 10 years ago, according to the defendant. e) The State Attorney's Office filed an appeal to this illegal sentence. The appeal is pending (2018-AP-1). 3) On February 28, 2018, Judge Draper was the presiding judge in the 5case of State v. Donna Lawrence, 2017-MM-3079, a Domestic Violence Battery. I was the Assistant State Attorney prosecuting this case. a) The facts of this case are that law enforcement noticed a car stopped without its lights on and blocking traffic. When approaching the vehicle, law enforcement heard fighting between the driver an assenger. When the officers were just a few feet from the vehicle, ey observed the defendant punch the victim three times in the arm vith a closed-fist. Both officers witnessed the victim cower and place his arms in a protective position, covering himself, as he was hit. The defendant told the officer that they were arguing because she found another female's pants in the backset of the car. The victim in this case was uncooperative and wanted the charges dropped. ») Prior to jury selection I informed the Court that I would be proceeding without a victim, Judge Draper asked how I intended to prove the case without the victim, particularly how I would prove the victim’s lack of consent to bein; battered, I provided the Court with the applicable case law. Both officers testified consistently with the above facts. I called the victim to testily and limited the questioning to identification and the Domestic Violence relationship with the defendant. Judge Draper allowed the defense to ask the victim about the facts of the case over the states repeated objections that it was outside the scope of direct. c) The victim called what the defendant did to him a “love tap.” After granting defense's Judgment of. Acquitial, Judge Draper said “he [victim] got on the stand and testified that it was a love tap an that's what we do as couples.” She continued to remark, “I don’t know of any couple that don't [sic] give the other a love tap every now and en. % When Judge Draper explained to the jury that the case had been dismissed, she said, “This case is over. A love tap is a love tap. That's not what domestic violence means.” 5) After personally witnessing on multiple occasions Judge Draper being unwilling to abide by statute and case law in Domestic Violence cases, I firmly believe that she can no longer sit as a fair and impartial judge on matters involving Domestic Violence offenses. (Appendix B). The affidavit (Appendix B) was filed with the motion to disqualify in each case, and was before Judge Carol E. Draper when she found that each motion to disqualify “is legally insufficient and/or untimely.” (Appendix C)THE RELIEF REQUESTED The State requests that this Court enter its order directing that Judge Carol E. Draper be disqualified from acting in each of the cases listed above. ARGUMENT Florida law is well settled that an initial motion to disqualify a trial judge shall be granted so long as the motion is legally sufficient. Cave. v. State, 660 So. 2d 705, 707-708 (Fla. 1995); Fla. R. Jud. Admin. 2.330(f). In this case, the State’s motions satisfied those requirements in that it is in writing; alleges specific facts and reasons for disqualification; is sworn to by the moving party; and certifies that the motion is made in good faith. Fla. R. Jud. Admin. 2.330(c). The facts alleged in support of each motion are set out in detail above and establish a well-grounded fear that the State will not receive a fair trial in the cases listed above - - that is the standard for the legal sufficiency of the motions. Cave, supra; Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983). The State’s motions met that standard, and Judge Draper should have granted each motion. Finally, the Motions for Disqualification were timely. The State’s Affidavit (Appendix B), paragraphs one and two, sets forth Judge Draper’s course of conduct in acting biasedly against the State of Florida. Paragraph 3 of Appendix B sets out the facts that occurred on February 28, 2018, when Judge Draper declared that a “love tap is a love tap. That’s not what domestic violence means.” JudgeDraper continued to remark that “I don’t know of any couple that don’t [sic] give the other a love tap every now and then.” It is within ten days of this action, on March 9, 2018, that the State filed its Motion to Disqualify Trial Judge in each of the cases noted above (Appendix A), and thus, the State’s motion is timely pursuant to Rule 2.330(e), Fla. R. Jud. Admin. The Motions were legally sufficient, and denial of them was error. CONCLUSION The motion to disqualify filed by the State in each of the above referenced cases was legally sufficient - - the facts alleged in the motion establish a well- founded and objectively reasonable fear that the State cannot receive a fair trial in each case. That is the standard, and the motions meet it. It was error for the trial court to deny the motion in each case. This Court should order that Judge Carol E. Draper shall take no further action in the cases listed above.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true a correct copy of the forgoing Petition for Writ of Prohibition has been furnished by interoffice mail to the Honorable Carol E. Draper, County Court Judge, Ninth Judicial Circuit, in and for Osceola County, Florida, Osceola County Courthouse, Kissimmee, Florida, 34741 and via electronic mail to Rachel Fernandez, rfernandez@circuit9.org and Division70@circuit9.org, 2 Courthouse Square, Suite 1600, Kissimmee, Florida 34741; Alison Kerestes, alison@keresteslawfirm.com; service@keresteslawfirm.com, P.O.Box 2193, Orlando, Florida 32802; James Dougherty, jdougherty@circuit9.org and Division70@circuit9.org, 2 Courthouse Square, Suite 1600, Kissimmee, Florida 34747; Miguel Ubiles, mubiles@circuit9.org and Division70@circuit9.org, 2 Courthouse Square, Suite 1600, Kissimmee, Florida 34737; Christopher Mack, attorneychrismack@hotmail.com; servel@sotomack.com, 21 South Clyde Avenue, Unit 1, Kissimmee, Florida 34741; Lisa Figueroa, lisa@figeroalawfirm.com, 100 So. Semoran Blvd., Orlando, Florida 32807; Craig Sonner, craigsonner@earthlink.net; 3001 39" Street, Orlando, Florida 32839; Rebecca Lewis, rlewis01 @circuit9.org and Division70@circuit9.org, 2 Courthouse Square, Suite 1600, Kissimmee, Florida 34741; Unknown; Alex Johnson, 9ajohnson@circuit9.org and Division70@circuit9. Org, 2 Courthouse Square, Suite 1600, Kissimmee, Florida 34744; Jessica Travis@lawoffice-Orlando.com, 1513 E. Livingston Street, Orlando, Florida 32803; Juan A. Salazar, salazarj13@aol.com, 603 Verona Street, Kissimmee, Florida 34741; Jeremiah D. Allen, jeremiah@jeremiahdallen.com, 200 North Thornton Ave, Orlando, Florida 32801; Mark A. Arias, attorney@ariaslawoffices.com, 6220 S. Orange Blossom Trial, Plaza Central, Suite 101, Orlando, Florida 32809; Curtis D. Mendenhall, mendenhallcurtis@gmail.com, P.O. Box 2629, Orlando, FL 32802-2629; Ernest J. Mullins, mullinsdiscovery@yahoo.com, 519 West Patrick St., Kissimmee, FL 34741; Matthew Jordan, mjordan@circuit9.org and Division70@circuit9.org, 2 Courthouse Square, Suite 1600, Kissimmee, FL 34747; Amir A. Ladan (Orlando Office), amir@ladanlaw.com, 121 South Orange Avenue, Suite 1420, Orlando, FL 32801; John Zaleskie, arodriguez@rcSstate.com, jzaleskie@rcSstate.com, 3300 Greenwald Way North, Kissimmee, FL 34741, Chad M Seibel, Chad.Seibel@DonWaggonerLaw.com; sccyl@donwaggonerlaw.com, 1013 Verona Street, Kissimmee, FL 34147; Lazaro G. Blanco, blancolawgroup50. ail.com, 1631 East Vine Street, Suite M, Kissimmee, FL 34744, Steven R. Tinsley, pleadings@yourside.com, 12 South Orlando Avenue, Kissimmee, FL 34741; Rose M Feller, EService@feller-law.com, kaitlin@feller- 10law.com, rose@feller-law.com, 745 Primera Blvd., Suite 1021, Lake Mary, FL 32746; on this 2.2, a day of March, 2018. Aramis D. Ayala, State Attorney Ninth Judicial Circuit of Florida Carol Levin Reiss Assistant State Attorney Florida Bar No. 501034 PCF@sa09.org P.O. Box 1673 415 N. Orange Avenue Orlando, Florida 32802 (407) 836-2406 11