
    Austin EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2397.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2001.
    
      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, and Valerie Jones, Assistant Public Defenders, for appellant.
    Robert A. Butterworth, Attorney General, for appellee.
    Before SCHWARTZ, C.J., and SORONDO, and RAMIREZ, JJ.
   RAMIREZ, J.

This was a petition for writ of prohibition which we denied on August 29, 2001. After reviewing the petition, we found it so frivolous that we ordered Bennett Brum-mer, Public Defender, and Valerie Jonas, Assistant Public Defender, to show cause why sanctions should not be imposed under Rule 9.410, Florida Rules of Appellate Procedure. After reviewing the response, we still are of the opinion that the petition had no merit, but we cannot find that the conduct of Austin Evans’ counsel warrants any sanctions.

The petition sought review of the denial of a motion to disqualify the trial judge based on two incidents. The first involved giving a slice of pizza to the prosecution witness during a recess. It was alleged that between the direct and cross-examination of the victim, the court recessed the proceedings. The victim complained she was hungry and the court gave her a slice of pizza. Defense counsel complained because the trial judge did not offer pizza to the defense witnesses nor did he speak to them. Evans was subsequently found guilty of aggravated assault with a firearm.

Five days later, Evans was brought back before the court on the severed count of possession of a firearm by a convicted felon. After the plea offer was explained to Evans twice, he claimed to be confused. The judge asked him what he was confused about. Evans answered: “I need — I need — I need time. You know what I’m saying.” The court then stated: “We’re going to sort out your confusion real quick. We’re going to get a jury down here and they’re going to tell you whether they think you’re guilty or innocent and then you’re going to have your confusion sorted out for you one way or the other.”

The trial court was correct in denying the motion to disqualify. There is no prohibition against a judge being courteous to a witness, especially after the witness complained that she was hungry. The exchange between the judge and the witness did not take place in front of the jury. They did not discuss the case or her testimony. In Rose v. State, 601 So.2d 1181, 1183 (Fla.1992), the Florida Supreme Court held that “a judge should not engage in any conversation about a pending case with only one of the parties participating in that conversation. Obviously, we understand that this would not include strictly administrative matters not dealing-in any way with the merits of the case.” See also Arbelaez v. State, 775 So.2d 909, 916 (Fla.2000). Giving a slice of pizza to a hungry witness is even more frivolous a claim than discussing an administrative matter.

We also find no basis for disqualification in the judge’s response to Evans’ claim of confusion. Evans’ conduct obviously indicated that he was stalling for time, not that he was confused. To reply that he was going to get a jury to decide Evans’ guilt or innocence does not demonstrate the trial judge’s “evident exasperation” as Evans alleges. The trial judge’s response was a normal one directed at a criminal defendant who did not want to enter into a plea agreement.

Defense counsel argues that then-conduct was not sanctionable as the petition was not “frivolous” within the case law as set forth in Visoly v. Security Pac. Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000). We agree that the appeal was not frivolous under those strict standards. Not every meritless appeal is sanctionable. We thus decline to sanction counsel for filing the petition in this case.

SORONDO, J.

(concurring)

I agree with Judge Ramirez that the extraordinary writ that gave rise to the present proceeding was not “frivolous” for purposes of imposing sanctions on the attorney who filed it. I also believe that the petition for writ of prohibition in this case was without merit and unworthy of the office that filed it. In Visoly v. Security Pacific Credit Corp., 768 So.2d 482, 485 (Fla. 3d DCA 2000), this Court said:

Nothing operates more certainly to demean the profession of practicing law, than does the notion that effective advocacy condones stretching the boundaries of professional ethics in the name of pursuing client interests.

The suggestion that the trial judge’s simple act of kindness and common courtesy is a disqualifying event, is, if not “frivolous” as discussed in Visoly, at the very least meritless and borders on being insulting.

The second claim is equally valueless. The case was ready and a jury panel was being gathered to begin trial. The parties approached the judge to explain their efforts to settle the case. Confronted with a claim that the defendant did not understand the plea offer, the judge made two efforts to explain it. Frustrated by what he obviously perceived to be defendant’s feigned inability to understand, the judge abandoned his efforts and opted to give defendant that which he was guaranteed by the Federal and State Constitution — a trial by jury. I applaud the judge’s immediate decision to provide defendant his right to a jury trial, rather than engaging in the unseemly practice of trying to persuade or cajole the defendant into accepting the proposed plea bargain.

The motion to disqualify should never have been filed. The decision to challenge its proper denial in this Court represents the total absence of good judgment.

SCHWARTZ, Chief Judge

(dissenting).

In my opinion, “frivolous” is far too good a word for the petition described and characterized by Judge Ramirez and Judge Sorondo. I would therefore impose sanctions on those responsible. It is appalling that the type of practice represented by the proceedings below and here is apparently so widespread in our legal society that it has poisoned even the appellate section of the public defender’s office, which has maintained an outstanding reputation for ability, candor and ethical behavior. As one who has worked with the office for nearly thirty years and who has made no secret of his admiration, I am ashamed of the lawyers involved in this case. 
      
      . The claim that the judge ignored or did not offer pizza to defense witnesses who were also sitting in the courthouse hallway is disingenuous. There is nothing in the record to suggest that the judge even saw the defense witnesses as they sat in the hallway or that he would have recognized them as such had he seen them, as the state had not yet rested its case.
     
      
      . This includes those who, even after prohibition was denied and we issued a rule to show cause, did not acknowledge that a mistake had been made and instead filed a well written, substantively fatuous pleading which insisted on the non-existent merits of the original petition.
     