☢ test - Í

motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” [Cit.]’ Turner v. State, 280 Ga. 174, 175 (626 S.E.2d 86) (2006). An affidavit ‘which stated no facts and merely accused the trial court of bias, [is] legally insufficient to necessitate a hearing on the motion. [Cits.]’ Jarallah v. Pickett Suite Hotel, 193 Ga.App. 325, 327(3) (388 S.E.2d 333) (1989). See also Stephens v. Ivey, 212 Ga.App. 407, 408(2) (442 S.E.2d 248) (1994). A recusal motion supported by an affidavit containing completely unsubstantiated allegations of judicial bias cannot be used as a tool ‘for delay and to judge shop. [Cit.]’ Baptiste v. State, 229 Ga.App. 691, 697(1) (494 S.E.2d 530) (1997). In determining the sufficiency of the affidavit, a trial judge must bear in mind that ‘it is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious; nor does the simple filing of an affidavit automatically disqualify a judge.’ [Cits.] Alexander v. State, 276 Ga.App. 288, 291(3)(a) (623 S.E.2d 160) (2005). Because the motion to recuse was clearly insufficient on its face, Judge Baxter correctly concluded that it should be denied summarily without any need to assign it for a hearing before another judge. See Dodson v. Dean, 256 Ga.App. 4, 6 (567 S.E.2d 348) (2002).” Accord, Crosbie v. State , 304 Ga.App. 613, 697 S.E.2d 278 (June 25, 2010). 2. “The proper remedy for challenging Judge Manis’ denial of the motion to recuse herself was an appeal, not a mandamus action against her. Whitley v. Schwall, 279 Ga. 726 (620 S.E.2d 827) (2005).” Alexander v. State, 276 Ga.App. 288, 623 S.E.2d 160 (November 8, 2005). Allegation in recusal affidavit “that the judge’s wife was a counselor at a school previously attended by the victim” of sexual assault was insufficient to call the judge’s impartiality into question. “Under Canon 3(E)(1) of the Code of Judicial Conduct, a trial judge must recuse himself or herself whenever his or her impartiality might reasonably be questioned. The phrase ‘“[i]mpartiality might reasonably be questioned” means a reasonable perception, of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference.’ Baptiste v. State, 229 Ga.App. 691, 694(1) (494 S.E.2d 530) (1997).” Since recusal would not have been warranted even “assuming all the facts alleged to be true,” State v. Fleming , 245 Ga. 700, 267 S.E.2d 207 (1980), the judge was not required to refer the recusal motion to another judge . Gould v. State, 273 Ga.App. 155, 614 S.E.2d 252 (May 3, 2005). Trial court properly denied motion to recuse under USCR 25.3 as being facially insufficient, “because the facts set forth in Gould’s affidavit were legally insufficient to warrant recusal.” “Gould’s affidavit asserted the following: ‘Affiant believes that Plaintiff and Judge in said case are conspiring against Affiant by failing to produce a bona fide unaltered, original, Contract between Affiant and Plaintiff. Affiant has reason to believe and does believe that Judge Larry F. Salmon is biased and prejudiced against Affiant and he can not and could not be in the proceedings herein against Affiant exercise the authority/obligation and responsibility of Judge to remain impartial in said case. Affiant absolutely believes that he can not have a fair and impartial hearing with any Superior Court Judge from Floyd County. Said Judge did give Plaintiff an extension of time on two separate occasions against Affiant without Affiant’s consent [sic] a fraud upon the court.” “Because the facts presented in Gould’s affidavit do not require recusal, the trial court properly denied the recusal motion and was not required to refer the motion to another judge for decision.” Accord, Davis v. State , 273 Ga.App. 397, 615 S.E.2d 203 (May 23, 2005) ( reversed on other grounds , 280 Ga. 352, 628 S.E.2d 374 (March 27, 2006)); Lacy v. Lacy , 320 Ga.App. 739, 740 S.E.2d 695 (March 25, 2013) (fact that one judge’s son had filed affidavit supporting mother in custody dispute was insufficient to require all judges in circuit to recuse, or to require referral of motion to another judge). 10. PROCEDURE – OTHER Henderson v. State, 295 Ga. 333, 759 S.E.2d 827 (June 16, 2014). Following guilty pleas to murder and related offenses in 2000, trial court properly denied motion to recuse and motion to withdraw pleas in 2013. 1. Fact that orders denying both motions were filed simultaneously doesn’t mean judge improperly considered motion to withdraw before deciding motion to recuse. “‘[U]nless shown otherwise, the trial court is presumed to have followed the law.’ Hill v. State, 291 Ga. 160, 161(2) (728 S.E.2d 225) (2012) (citation and quotation marks omitted). Thus, because appellant has not ‘shown otherwise,’ we presume that the trial court ruled on appellant's motion to recuse before turning to his motion to withdraw.” 2. Handwritten entry on last page of motions, “Motion denied,” signed and dated by judge, was sufficient. “The orders were handwritten on appellant's own documents on the pages that contained his signature, and they were stamped filed in the trial court clerk's office. Appellant then received notice of the orders, recognized that both of his motions had been denied, and filed timely notices of appeal. Appellant's contention that the orders are also invalid because they do not contain findings of fact is without merit. Appellant relies on OCGA § 9–11–52(a) to argue that findings of fact were necessary, but that Code section is inapplicable to this criminal case. See OCGA § 9–11–1 (saying that Chapter 11 of Title 9 applies ‘in all actions of a civil nature’). Moreover, we are aware of no requirement that trial courts must enter findings of fact on motions to withdraw, particularly where the controlling issue concerns the timeliness of the motion,

Made with FlippingBook Ebook Creator