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DISQUALIFICATION OF THE ENTIRE STATE ATTORNEY'S OFFICE GENERALLY NOT AN OPTION
December 18, 2008
Topic: Criminal
Michael Hayes was accused of forgery as well as grand theft and extortion. One of the alleged victims was a local attorney. By the time the trial, the attorney had obtained a position on the bench as a county court judge.
The first prosecutor offered Mr. Hayes a plea deal of a probationary sentence with restitution. That prosecutor subsequently left the prosecutors office. The second prosecutor felt that probation was too lenient of a sentence and withdrew the plea deal. Mr. Hayes filed various motions for change of venue based on the notoriety of the victim and the fact that he was one of the most prominent attorney's in the county. Additionally, Mr. Hayes filed a motion to disqualify the entire State Attorney's Office claiming that the office had an inherent conflict of interest in having to prosecute a case involving an alleged victim who is a sitting county court judge before whom the office must practice every day. He contended that he would be unable to receive a fair trial. Finally, Mr. Hayes filed a motion to enforce the original plea agreement.
In instances such as this, "the disqualification of Government counsel is a drastic measure and a court should hesitate to impose it except where necessary." The Florida Supreme Court has held that disqualification of a prosecutor is proper "only if specific prejudice can be demonstrated." Actual prejudice is something more than the mere appearance of impropriety and disqualification of a prosecutor is only proper when it is necessary "to prevent the accused from suffering prejudice that he otherwise would not bear." The court found that there was no specific evidence that there was any prejudice on the part of the prosecutor's office. The court also found that in any case, the victim has the right to testify at the sentencing portion of the trial. Therefore, there was no impropriety when the judge testified at the sentencing hearing. Finally, the court found that Mr. Hayes had no right to a probationary sentence. That sentence was below the guidelines set for such offenses. Additionally, the State enjoys the right to withdraw a plea offer at any time up until the plea agreement is accepted by the court. Thus, there could be no actual prejudice based on the State's withdrawal of a plea offer it had every right to withdraw.
