Case Nos.: CI99-044975A-XX; CI99-044976A-XX; CI99-044977A-XX
CI99-044978A-XX; CI99-044979A-XX; CI99-044980A-XX
Appeal No.: CC-13
WILLIAM CARSON JR., and SYLVIA CARSON,
Appellants,
vs.
STATE OF FLORIDA,
Appellee.
________________________
OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge James A. Yancey presiding. William Carson, Jr. and Sylvia Carson, pro se, appeal several orders from the lower court. This court has jurisdiction. Fla. R. App. P. 9.030(c), and 9.110(b). Affirmed in part and reversed in part.
The Carson's were adjudicated guilty on January 31, 2000 of six civil traffic infractions. They filed a motion for rehearing with attachments on February 10, 2000. The trial court granted the motion for rehearing on February 22, 2000 and directed the Carson's to file original affidavits for the court's consideration. Instead, they filed a motion for reconsideration seeking a full rehearing on all issues as well as a motion to disqualify the trial judge. On March 13, 2000, the trial judge denied both the motion for reconsideration and the motion to disqualify. The Carson's filed a notice of appeal on April 10, 2000. After considering the affidavits, the trial judge denied the motion for rehearing on May 10, 2000.
I.
On September 4, 1999, a Polk County Sheriff's deputy captured a radar signal of 75 miles per hour in a 55 mile per hour zone and followed the vehicle north on Alternate Highway 27, north of Lake Wales. The officer followed the vehicle onto a private road inside the Twin Fountains Mobile Home Park where he observed the driver and front seat passenger change positions while the vehicle was in motion. When he approached the vehicle, the officer observed that the person he had seen driving was seated in a rear passenger seat, and the front seat passenger was in the driver seat. The officer questioned the driver and passenger regarding what he had observed. The Carson's first denied the allegations and refused to produce identification when requested by the officer. Sylvia later identified herself as William's mother, and they admitted that they had changed drivers to try to avoid a ticket. The officer cited William for speeding, and both Sylvia and William for careless driving and seatbelt violations.
II.
The Carson's raise three issues on appeal. They are as follows: 1) the trial judge denied them due process when he denied them the opportunity to file affidavits in their cases; 2) the officer presented false, material testimony; and 3) the trial judge erroneously denied their motion for recusal.
III.
A. Due Process
The Carson's cite Florida Rule of Traffic Court 6.150(b) in support of their claim that the trial judge erred as a matter of law when he denied them the opportunity to file witness affidavits in support of arguments presented at trial. The record on appeal establishes that the trial judge granted a motion for rehearing to consider original affidavits on February 22, 2000. The trial judge subsequently denied a rehearing.
The motion contains four grounds for a rehearing. To the motion, the Carson's attached the affidavit of Tom Pierce, Right of Way Agent for The Polk County Engineering Division which states that the roads within the Twin Fountains Mobile Home Park are privately dedicated and maintained. The Carson's also presented the affidavit of Fred Shorten, a resident of Twin Fountains, which stated that there is no agreement between the residents and Polk County for the enforcement of traffic laws wihtin the park.
Section 316.640 (2)(b), Florida Statutes, (2000) states in pertinent part that sheriff's officers have authority to enforce traffic laws on Aall streets and highways thereof and elsewhere throughout the county wherever the public has a right to travel by motor vehicle.@ Sheriff's officers may also be required to enforce traffic laws on private or limited access roads by agreement and pursuant to section 316.006(3)(b). Further, Florida Rule of Traffic Court 6.150(b) authorizes the use of witness affidavits in traffic proceedings when such affidavits are Abased on the personal knowledge and observation of the affiant as to relevant material facts.@ Failure to consider the affidavits was clear error pursuant to Florida Rule of Traffic Court 6.150(b).
B. Material False Testimony
The Carson's charge that the deputy made an untrue statement of material fact regarding the Sheriff's Office jurisdiction to issue civil traffic citations within the Twin Fountains park. The statement must be knowingly false and in regard to a material matter. Brown v. State, 334 S0. 2d 597 (Fla. 1976). While a ruling based upon false testimony is subject to reversal, the Carson's have failed to make the requisite showing on the record that the officer knowingly testified falsely.
Further, the Carson's have attempted to improperly supplement the appellate record to establish the falsity of the deputy's statements. AIt is well settled that an appellate court must make judgments on the official record before it. The Appellant has the duty to demonstrate reversible error in the judgment on appeal based on the record and the law applicable thereto. Richardson v. Watson, 611 So. 2d 1254, 1255 (Fla. 2d DCA 1992). It appears that these documents became available after the trial, and were never reviewed by the trial judge. Nevertheless, even if those documents were properly before this court, they do not establish that the officer knowingly testified falsely.
C. Motion for Recusal
Finally, the Carson's argue that the trial judge erred as a matter of law by failing to recuse himself. The Carson's motion points to no alleged prejudice or bias. Rather, it recites the series of rulings in favor of the state. The State correctly asserts that a motion for recusal must contain legally sufficient facts justifying recusal. Because mere disagreement with the court's rulings does not, in this cause, establish bias or prejudice, the Carson's have failed to establish error. Rivera v. State, 726 So. 2d 477, 481 (Fla. 1998).
IV.
In the absence of an agreement, a county officer cannot issue civil traffic citations on a private road. For this reason the witness affidavits were relevant to material facts and should have been considered as competent evidence tending to show that the county did not have jurisdiction over roads within the mobile home park. Accordingly, the rulings on the seatbelt and careless driving violations, cases CI99-044976A-XX, CI99-044977A-XX, CI99-044978A-XX, CI99-044979A-XX, and CI99-044980A-XX, cannot stand. The Carson have not established reversible error in their remaining points on appeal. Moreover, those issues have no bearing on the unlawful speed violation.
Accordingly, it is ORDERED that rulings on cases CI99-044976A-XX, CI99-044977A-XX, CI99-044978A-XX, CI99-044979A-XX, and CI99-044980A-XX are REVERSED. It is further ORDERED that case CI99-044975A-XX is AFFIRMED.
ORDERED 27 March 2001.
Charles B. Curry
Chief Judge