
    Carmen ALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 91-2546.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1993.
    Rehearing, Rehearing En Banc and Certification Denied July 9, 1993.
    
      Kayo E. Morgan, Fort Lauderdale, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   FARMER, Judge.

Appellant challenges her conviction and sentence for driving under the influence resulting in manslaughter on several grounds, but we find only one dispositive and reverse.

At one point during the trial the judge overruled an objection but admonished defense counsel to give him “the courtesy of a stand” when he interposed an objection. Counsel then asked for a side-bar conference to explain that he meant no discourtesy but merely behaved as the judge had permitted in the past. To this the judge responded as follows:

THE COURT: I think it’s a matter of courtesy, and I think it’s rude to sit down and address the Court. You know, I don’t give a shit whether you like me or dislike me, or hate my guts, but you’re not going to disprespect [sic] my robe. Counsel objected to this comment in front of the jury, and asked for a mistrial, which was denied.

At another point during defense counsel’s cross-examination, the trial judge made the following comment in response to an objection:

THE COURT: If he finishes that question, I’m going to put you in contempt of court, and give you ten days in jail.
COUNSEL: I want to finish. No, they opened the door.
THE COURT: Did you hear what I said?
COUNSEL: Ten days?
THE COURT: Try me.
COUNSEL: Note my objection to the court admonishing me in that fashion, threatening contempt again in front of the jury. I move for a mistrial.
THE COURT: Motion denied. You asked for it; you’re going to get it.
COUNSEL: Not in front of the jury.
THE COURT: In front of the jury, outside the jury, out in the hallway, whatever.

On another occasion, the court said to defense counsel “You’re liable to wind up in jail with him if you keep talking out.” The record contains other exchanges suggesting a distinct hostility between the trial judge and this attorney.

With all due respect for this experienced trial judge — and, similarly, without condoning all that counsel did and said to the judge — we are convinced that the judge’s comments in the presence of the jury passed beyond acceptable allowances for impertinence by an attorney. To some extent, we discern that some of counsel’s apparent impertinency was actually provoked by the trial judge’s intemperance.

We do not share Judge Polen’s view of the transcript. As we have just suggested, defense counsel’s reactions to the judge’s conduct may have bordered on impertinence, but they do not appear to us to be belligerent, or even merely “blatantly improper.” While we agree that the state’s evidence of guilt was great, we are nevertheless unable to say that it was so great that the judge’s comments did not affect the outcome. The fact that this was a second trial and a reversal will result in a third is not any basis to avoid the issue. In our opinion, the judge’s comments and conduct were reasonably likely to create a prejudicial effect on the defendant and thus required a mistrial.

REVERSED FOR A NEW TRIAL.

ANSTEAD, J., concurs.

POLEN, J., dissents with opinion.

POLEN, Judge,

dissenting.

Carmen Alley appeals from a judgment of conviction and sentence for driving under the influence, which resulted in manslaughter, as well as the trial court’s denial of a motion for new trial. The trial court entered these orders after appellant was retried on remand pursuant to this court’s mandate in Alley v. State, 553 So.2d 354 (Fla. 4th DCA 1989).

I would affirm the trial court in every respect, and feel compelled to address the majority’s reversal on appellant’s fifth point on appeal. Appellant argues and the majority agrees that the trial court erred when it denied her motion for mistrial, because the trial court’s treatment of her trial attorney prejudiced her in front of the jury. She contends that a trial judge’s discretion as to how it governs counsel at trial is not limitless, citing Wilkerson v. State, 510 So.2d 1253 (Fla. 1st DCA 1987). In support of her position, appellant quotes several parts of the trial transcript where the trial court admonished defense counsel in a harsh, sarcastic manner.

From the trial transcript it appears to me that defense counsel was frequently out of order and disrespectful to the court and to witnesses. The trial court responded with impatience after it apparently perceived that defense counsel would not alter his manner, despite several admonishments that he must do so. I also note that the trial court admonished the prosecutor several times. The court was critical of the prosecutor for asking a witness to testify regarding improper matters and for asking repetitive questions. Both sides were reprimanded for interrupting the court and each other and for talking simultaneously. Evidently, the frequency and severity of these reprimands were such that they provoked the trial court to instruct the jury, in the utmost caution, that the lawyers were not themselves on trial and that its feelings about the lawyers should not influence their decision in the case.

As an officer of the court, defense counsel employed certain behaviors during trial that should be discouraged. He was disrespectful and at times, his responses to the court were nothing short of belligerent. I have no way of conclusively knowing what motivates a defense counsel to make blatantly improper responses to the trial court’s rulings, but it seems that a defense counsel who is aware that the evidence against his or her client is overwhelming might, in a last desperate attempt, employ such unprofessional, obvious tactics in the hopes of provoking the trial judge and obtaining a new trial. When and if that is the case, that attorney and his or her client are not to be rewarded with a mistrial.

I believe the majority’s reversal on this point ignores the overwhelmingly strong testimonial and physical evidence against appellant, which the jury heard at both the instant and the previous trial. Appellant’s conviction should be affirmed. 
      
      . I note that trial counsel and appellate counsel are one and the same.
     
      
      . Furthermore, it is an insult to the collective intelligence of a jury to presume that it cannot separate, in obvious circumstances such as these, the guilt or innocence of the defendant based on the evidence presented, from the attorney's histrionics.
     