
    Michael Douglas McGIBNEY, Petitioner, v. The Honorable C. McFerrin SMITH, Respondent.
    No. 87-1225.
    District Court of Appeal of Florida, Fifth District.
    Aug. 28, 1987.
    Gordon H. Savage, Jr., Leesburg, for petitioner.
    Robert A. Butterworth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., Tallahassee, for respondent.
   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.

COWART, Judge,

concurring in part, dissenting in part.

The petition for writ of prohibition should be denied because the motion for disqualification of judge is unsworn. However, this court should not, by way of dicta, express an opinion as to the merits of the motion.  