author: BASCHAB, Judge. COBB, Judge,

text:
    Jason Keith TAYLOR v. STATE of Alabama.
    CR-00-2371.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied June 21, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1011867.
    Terry Lee Dempsey, Russellville, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and SHAW, J., concur; WISE, J., concurs in the result; COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

I respectfully dissent from the majority’s unpublished memorandum affirming the conviction and sentence in this case.

Jason Keith Taylor was indicted for manslaughter, a violation of § 13A-6-3(a)(2), Ala.Code 1975, and, on April 17, 2001, he was convicted of that charge. On May 29, 2001, Taylor was sentenced to 20 years in prison. Taylor filed a motion for a new trial, which the trial court denied after a hearing. This appeal followed.

The evidence at trial revealed that, on August 29, 1999, Taylor shot his girlfriend, Lisa Bergman, during an argument. In one of his statements to police, Taylor maintained that the victim was threatening his two-year-old son by holding a knife to the baby’s throat when Taylor shot her. The State presented evidence indicating that the victim was holding a knife-sharpener when she was shot. Taylor stated that he took his son to a nearby convenience store and telephoned emergency 911 because he had previously tripped on the telephone cord at the residence and pulled it from the wall. The victim was dead when the police arrived at the crime scene.

Taylor argues that the trial court erroneously denied his motion in limine to exclude testimony by the victim’s mother about her conversation with the victim the night before she died. He contends that the testimony was inadmissible hearsay. Taylor first advanced this particular argument in his motion in limine, which the trial court denied after a hearing. At trial, as the prosecutor began to question the victim’s mother about the telephone conversation, trial counsel objected, stating:

“[Trial counsel]: Your Honor, just for the record, based on my motion in limine I would like a continuing objection on the reasons I relied upon in my motion in limine pursuant to that phone conversation.
“THE COURT: Okay. The objection would be noted and continued] to be overruled.”

(R. 270-71.)

Evidence at trial revealed that, approximately six weeks before her death, the victim had been diagnosed with hepatitis-C and had an appointment to have a liver biopsy performed to verify the diagnosis. The victim was ill and was concerned about the outcome of the biopsy. The victim’s mother testified that, the night before her daughter died, she telephoned her daughter to talk to her about wedding rings the mother was making for her daughter and Taylor. The mother testified that her daughter said, “Mom, ... I’m not gonna be here to wear that ring. I originally wanted it because [Taylor] and I were planning to get married. I’m not gonna be — I’m gonna be dead and put it on my finger in my coffin.” (R. 272.) The mother testified that her daughter made references to her own death “[m]ore than a couple of times. And I assumed that because she was sick and scared with the biopsy coming up that she was talking about being afraid.” (R. 272.) The mother also testified that her daughter said that she would not be fighting with her sister over who would have the prettiest ring and that her daughter said, “There won’t be no fight, mamma. I won’t be here.” (R. 274.) The mother testified that the victim was frightened because the victim’s niece had died from hepatitis. In her statement to the police, the mother had stated that she believed her daughter made the remarks about her death because of the hepatitis diagnosis. However, at trial, she testified: “I did think she was scared until I found out she was dead and then I realized she was in trouble and I had made the biggest mistake of my life by not calling the police.” (R. 280.)

In its unpublished memorandum, the majority holds 1) that the testimony was not hearsay because “[i]t does not appear that the State offered Riddle’s testimony to prove the truth of the matter asserted therein”; 2) that even if the testimony were hearsay, it was admissible as a statement of the victim’s then state of mind under Rule 803(3), Ala. R. Evid.; and 3) that even if admission of the testimony were error, it amounted to harmless error because the testimony was cumulative. I address each of these holdings in turn.

I.

“It is well settled that ‘a determination of admissibility of evidence rests within the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of an abuse of discretion.’ ” State v. Mason, 675 So.2d 1, 3 (Ala.Crim.App.1993) (quoting Jennings v. State, 513 So.2d 91, 95 (Ala.Crim.App.1987)). “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. “Hearsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute.” Rule 802, Ala. R. Evid.

I am hard-pressed to imagine any other reason the State offered Riddle’s testimony other than for the truth of the matter asserted. The State sought to prove that the victim thought she was going to die, albeit at the hands of the appellant, which is exactly what the victim’s mother testified to. In fact, the victim’s mother went a step further and testified about what she believed was the cause of the victim’s belief that she was going to die — that the appellant was allegedly going to kill her.

II.

Which brings me to my second reason for dissenting.

“ ‘A statement made by the victim of a crime is ordinarily hearsay and inadmissible, unless it constitutes a recognized exception such as res gestae, a dying declaration, a threat, a declaration as to state of mind made by a victim upon his departure to meet the defendant, or a complaint in connection with a sex crime.’ C. Torcía, Wharton’s Criminal Evidence § 260 (14th ed.1986). ‘Statements and declarations of a deceased are not competent evidence for or against an accused in a murder prosecution unless made in his presence, or unless they are admitted in evidence as part of the res gestae or constitute dying declarations.’ Lovett v. State, 491 So.2d 1034 (Ala.Cr.App.), cert. denied, 491 So.2d 1039 (Ala.1986) (quoting from Hargrove v. State, 368 So.2d 335, 337 (Ala.Cr.App.1979)). See also Holland v. State, 162 Ala. 5, 50 So. 215 (1909).”

Jones v. State, 570 So.2d 775, 778 (Ala.Crim.App.1990) (emphasis added).

Rule 803(3) provides that the following is not excluded by the hearsay rule:

“A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declar-ant’s will.”

(Emphasis added.) The testimony of the victim’s mother speaks to the fact that the victim thought, not feared, that she was going to die. This is not a state of mind or emotion. This is a belief. The victim’s belief, as opposed to her state of mind, is not admissible under the exception to hearsay testimony in Rule 803(3), as the Rule clearly states. See also United States v. Joe, 8 F.3d 1488, 1492 (10th Cir.1993), and United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.1980) (“But the state-of-mind exception does not permit the witness to relate any of the declarant’s statements as to why he held a particular state of mind.... If the reservation in the text of the rule is to have any effect, it must be understood to narrowly limit those admissible statements to declaration of condition — ‘I’m scared’ — and not belief — ‘I’m scared because [the defendant] threatened me.’ ”).

Moreover, the victim’s mother’s testimony did not merely encompass the fact that the victim thought she was going to die. Some of the victim’s mother’s testimony indicated the mother’s belief that the reason the victim thought she was going to die was the appellant. The Alabama Court of Civil Appeals has addressed a similar issue in Fomby v. Popwell, 695 So.2d 628, 632 (Ala.Civ.App.1996):

“Thus, Baker could have testified as to Fomby’s statements that reflected Fomby’s mental anguish. However, it appears that Baker was instead attempting to testify as to the cause of Fomby’s mental anguish. In other words, while this rule permits Baker to testify that Fomby said she was worried, it does not permit her to testify as to the causes of her worry. See, e.g., United States v. Joe, 8 F.3d 1488 (10th Cir.1993), cert. denied, 510 U.S. 1184, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994) (holding that the declarant’s statements of fear were admissible under this exception, but that statements revealing the cause of his fear were not), cited in [C. Gamble, McElroy’s Alabama Evidence § 261.03(5), n. 1 (5th ed.1996) ].”

See also United States v. Joe, supra, and United States v. Cohen, supra. Certainly, then, the mother’s opinion testimony indicating that the reason her daughter thought she was going to die was that the appellant was going to kill her was inadmissible.

III.

As an aside, I would also like to point out that the victim’s statements were neither part of the res gestae nor dying declarations. The victim’s statements were uttered some seven hours before her death.

“The state argues that the statements and declarations of the deceased, as related by his sister and mother as set out above, constituted a part of the res ges-tae of the crime, and thus were admissible in evidence as exceptions to the hearsay rule. We do not agree. ‘Utterances made before the occurrence of the main fact may be admissible as part of the res gestae, if made as a part of the principal transaction, in reference to or in contemplation of it, or if it tends to explain the intent, motive, or purpose of the declarant.’ R. Williams, Williams’ Alabama Evidence § 141 (1967). ‘ “To be admissible as res gestae, the declaration of a deceased person must have been made at such a time and under such circumstances as to be a part of the transaction which [it purports] to explain .... ” ’ Lovett v. State, 491 So.2d [1034, 1036 (Ala.Crim.App.1986)].
‘We find an excellent definition of the res gestae principle in Harrison v. Baker, 260 Ala. 488, 493, 71 So.2d 284, 288-89 (1954), wherein the Alabama Supreme Court, quoting from Alabama G.S.R. Co. v. Hawk, 72 Ala. 112, 117 (1882), stated as follows:
“ ‘ “It is commonly said to have reference to such circumstances and declarations as are contemporaneous with the main fact under consideration, and so closely connected with it as to illustrate its character. 1 Greenl. Ev. § 108. What lapse of time is embraced in the word ‘contemporaneous’ is often a question of difficulty. Perfect coincidence of time between the declaration and the main fact is not, of course, required.... The declaration must, however, be so proximate in point of time as to grow out of, elucidate, and explain the character and quality of the main fact, and must be so closely connected with it as to virtually constitute but one entire transaction, and to receive support and credit from the principal act sought to be thus elucidated and explained. The evidence offered must not have the ear-marks of a device, or afterthought, nor be merely narrative of a transaction which is really and substantially past.” ’

“In the instant case, the testimony, relating statements or declarations made by the deceased several hours pri- or to the shooting was clearly inadmissible hearsay, and its admission in this case constituted reversible error. The declarations of the deceased were not so connected with the incident or transaction as to be a part of it or, as we say, a part of the res gestae. They were not connected to the crime, nor to some relevant or connected transaction, and did not form a part of it. His narrative concerning his relationship with appellant and the events that had occurred up to the time of his conversations with his sister and mother were not connected with the shooting, nor were they in contemplation of it. They do not explain or elucidate it. The declarations are narratives of past transactions and are lacking in spontaneity.”

Jones, 570 So.2d at 778-79.

I would reach the same result in this case. Taylor’s statements indicated that the shooting occurred around 3:00 a.m. on August 29, 2001. The victim’s mother testified that she spoke to her daughter on the telephone between 7:00 and 8:00 p.m. on the night of August 28, 2001. The shooting occurred some seven to eight hours after the victim had talked to her mother on the telephone. Therefore, the statements were clearly neither dying declarations nor part of the res gestae. The trial court erroneously allowed the mother’s testimony about the victim’s statement regarding her impending death.

IV.

Finally, I cannot say that this error was harmless.

“ ‘The standard for determining whether constitutional error is harmless is whether the court can “declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In determining whether constitutional hearsay error is harmless, a court may consider numerous facts, including
“ ‘ “ ‘the importance of the [declar-ant’s] testimony in the prosecution’s case whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the [declarant] on material points, ... in the overall strength of the prosecution’s case.’ Delaware v. Van Arsdall, 475 U.S. [673], 684, 106 S.Ct. 1431, 889 L.Ed.2d 674 [(1986)].”
‘James v. State, 723 So.2d 776, 781 (Ala.Crim.App.), cert. denied, 723 So.2d 786 (Ala.1998).’
“Ex parte Dunaway, 746 So.2d 1042, 1050 (Ala.1999) (Lyons, Justice, concurring in the judgment and concurring in part and dissenting in part as to the rationale).”

Baker v. State, [Ms. CR-95-0292, January 12, 2001] -So.2d -, - (Ala.Crim.App.2001).

The majority claims that the inadmissible testimony was cumulative to the following excerpt from Taylor’s statement to the police, which was read into evidence twice at trial:

“She said, “When mother calls back to not to worry [sic] about the rings, just to give her them.’ [She] said she just wanted her something made to be buried in. She said this because she knew she was dying.”

(R. 145, 172.) This portion of Taylor’s statement is not “ ‘to the same effect’ ” or a statement “ ‘from which the same facts can be inferred’ ” as the mother’s testimony. Smith v. State, 795 So.2d 788, 815 (Ala.Crim.App.2000) (quoting Yeomans v. State, 641 So.2d 1269, 1272 (Ala.Crim.App.1993)). On the one hand, as discussed below, the sum total of the victim’s mother’s testimony greatly prejudiced Taylor’s defense by allowing the inference that Taylor was somehow the reason the victim believed she was going to die and by corroborating the State’s otherwise weak evidence of Taylor’s allegedly violent nature. On the other hand, Taylor’s sole admission in his statement to the police that the victim thought she was dying, unadorned by the victim’s mother’s embellishments as allowed by the trial court, did not have the same effect of impheating Taylor and corroborating the State’s evidence of his allegedly violent temperament. Therefore, the prior admission of this statement does not render the subsequent testimony of the victim’s mother cumulative and therefore harmless.

Furthermore, the inadmissible testimony was extremely prejudicial to Taylor, particularly because it “cast [him] as an aggressor and a person prone to violence, and it tended to undermine and discredit [his] theory of [defense of his child].” Jones, 570 So.2d at 779. In fact, the record reveals that the State was intentionally trying to create an impression of Taylor as a violent person. The victim’s mother’s testimony not only served to corroborate the State’s theory that Taylor was violent, but also was the most compelling evidence of Taylor’s alleged violent predisposition. Therefore, I cannot agree that the admission of the mother’s testimony was harmless beyond a reasonable doubt.

For the reasons stated above, I would have reversed the judgment of the trial court and remanded this cause for a new trial. Therefore, I dissent.

      . Taylor also takes issue with the mother’s testimony that she heard her daughter say to Taylor's son, " 'Come here, sweetie, and let me get your shoes off so you can get in bed with Aunt Lisa.’ ” (R. 274.) However, this testimony was not included in Taylor's original motion in limine, and Taylor did not object to its admission at trial. Therefore, any argument he advances regarding this statement has not been preserved for appellate review.

      . The State questioned a friend of the victim to elicit testimony regarding an argument between the victim and Taylor a month before the shooting regarding the decision to keep a gun in the house. The State questioned another friend of the victim to elicit testimony regarding an allegedly threatening comment made by Taylor immediately after another argument with the victim at least two weeks before the shooting. Finally, the State questioned the victim’s mother to elicit testimony regarding how Taylor would generally "get angry quick,” "cuss,” and be "short” and "hateful” to the victim when they argued. (R. 266-67.)


source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    TABLEAU FINE ART GROUP, INC., and Tod Tarrant, Petitioners, v. Joseph J. JACOBONI, et al., Respondents.
    No. SC01-943.
    Supreme Court of Florida.
    May 22, 2003.
    Rehearing Denied Aug. 20, 2003.
    Perry M. Adair of Becker & Poliakoff, P.A., Miami, FL, for Petitioners.
    Gary M. Pappas and Jeffrey A. Cohen of Carlton Fields, P.A., Miami, FL, for Respondents.
   QUINCE, J.

We have for review Tarrant v. Jacoboni, 780 So.2d 344 (Fla. 3d DCA 2001), a decision of the Third District Court of Appeal, which the Third District certified to be in express and direct conflict with the Fifth District Court of Appeal’s decision in Anderson v. Glass, 727 So.2d 1147 (Fla. 5th DCA 1999). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons which follow, we approve the Third District’s decision in Tarrant, but we find that a motion for judicial disqualification must be ruled on within thirty days of its filing with the court.

MATERIAL FACTS AND PROCEEDINGS

Joseph Jacoboni (Jacoboni) filed suit in circuit court against Tableau Fine Art Group and Tod Tarrant (petitioners) for actions arising out of the sale of a piece of art called the Calder Mobile. Jacoboni sued petitioners, alleging civil theft, fraud, and negligent misrepresentation.

Petitioners denied that they made any material misrepresentations to any of the parties. Petitioners maintained that Jaco-boni’s agent, Robert Lombard, knew that the seller of the Calder Mobile, Maria Stone, was represented by an agent, Dawn Gideon. Petitioners claimed that Ms. Gideon gave Tarrant the right to present the piece to interested parties. Additionally, petitioners alleged that Robert Lombard, Jacobonfs agent, was aware of other factual inaccuracies surrounding the transaction.

Subsequently, based on testimony given by Tarrant at a deposition, Jacoboni filed a motion to amend his complaint in order to add a claim for punitive damages. Jaco-boni argued that petitioners falsely represented through oral and verbal communications that they had the exclusive right to sell the Calder Mobile; that the owner wanted $1.6 million for the mobile; and that Tarrant’s commission would only amount to $50,000. In actuality, petitioners never had the exclusive right to sell the piece of art, and the actual selling price for the piece of art was $1.3 million. Jacoboni alleged that petitioners kept the $50,000 commission and the extra $300,000 for themselves.

Petitioners filed a motion to disqualify the trial judge on August 3, 2000. In the motion, petitioners alleged that the judge made remarks during the hearing on the motion for punitive damages which created a well-founded fear that they would not receive a fair trial. At a hearing on September 28, 2000, the judge promised that a ruling on the disqualification motion would be rendered in a few days. On November 20, 2000, the trial judge denied the motion. Petitioners sought a writ of prohibition in the Third District Court of Appeal.

The Third District denied petitioners’ request for a writ of prohibition. Petitioners had argued that based on the Fifth District’s decision in Anderson v. Glass, 727 So.2d 1147 (Fla. 5th DCA 1999), the trial judge’s delay in ruling on the disqualification motion should have resulted in the automatic granting of the motion. The Third District disagreed with the Fifth District’s interpretation of Florida Rule of Judicial Administration 2.160(f), but granted petitioners’ request for certification of direct conflict. See Tarrant v. Jacoboni 780 So.2d 344 (Fla. 3d DCA 2001).

LAW AND ANALYSIS

At issue in this case is whether Florida Rule of Judicial Administration 2.160 requires the automatic granting of a motion for disqualification when a judge fails to rule immediately on the motion. Essentially this case turns on the interpretation of the meaning of the word “immediate” as used in rule 2.160. The rule provides in relevant part:

(e) Time. A motion to disqualify shall be made within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.
(f) Determination — Initial Motion. The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered.

Fla. R. Jud. Admin. 2.160(e)-(f) (emphasis added).

Additionally, section 38.10, Florida Statues (2000), gives parties the right to seek disqualification of a trial judge for bias or prejudice. The statute reads:

Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified.

Rule 2.160 governs the process for judicial disqualification, while section 38.10 controls the substantive right. See Cave v. State, 660 So.2d 705, 707 (Fla.1995).

The disqualification rules are designed to keep the courts free from bias and prejudice. See Suarez v. State, 95 Fla. 42, 115 So. 519, 519 (1928). This Court has observed that the disqualification statute and rules are designed to ensure confidence in the judicial system, “as well as to prevent the disqualification process from being abused for the purposes of judge-shopping, delay, or some other reason not related to providing for the fairness and impartiality of the proceeding.” Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983). Therefore, the rules permit trial courts to conduct only a “bare determination of legal sufficiency” in order to prevent an adversarial atmosphere from developing between the judge and the litigant. Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978).

Petitioners urge this Court to adopt the holding of the Fifth District in Anderson v. Glass, 727 So.2d 1147 (Fla. 5th DCA 1999). In Anderson, the petitioner filed a motion to disqualify the trial judge in a child support action. The trial judge considered the matter for more than thirty days before entering an ordering denying the motion. The Fifth District granted the petitioner’s request for a writ of prohibition, finding that rule 2.160(f) required a trial judge to rule upon such motions “without delay.” The court reasoned that “[t]he rule recognizes that prompt rulings promote public confidence in the impartiality of the trial judge while delayed rulings not only slow the litigation process but call into question the trial judges motives.” Id. at 1147.

In the instant case, the Third District disagreed with the Fifth District’s reasoning in part because it found no other case besides Anderson that interpreted rule 2.160(f) in a similar manner. See Tarrant, 780 So.2d at 345. The Third District noted that most trial judges, as part of general practice, enter immediate rulings on disqualification motions. However, the court found nothing in the rule which prevented a trial judge from taking extra time to consider a motion in order to perform research or to review memoranda filed by the parties. The Third District reasoned that a bright-line rule was unnecessary, because if a judge takes a motion under advisement for too long a period, a party has a number of options, such as the right to file a petition for a writ of mandamus to compel a ruling by the trial judge.

However, this Court’s decision in Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000), supports the Fifth District’s reasoning in Anderson. In Fuster-Esca-lona, this Court considered whether the failure of a judge to rule on a disqualification motion for more than one year provided a basis for a motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). In beginning its analysis, this Court noted that it has always “strictly applied” the procedural requirements of rule 2.160(f). This Court then went on to explain the meaning behind the immediacy requirement of rule 2.160(f):

[T]he rule provisions concerning “immediate” resolution have been accorded their plain meaning, which the Court has explained requires action that is “prompt” and “with dispatch.” Livingston v. State, 441 So.2d 1083, 1085 (Fla.1983). Our comment on the adoption of rule 2.160 emphasizes a trial judge’s responsibility to act quickly on such a motion: “We find the motion [to disqualify] should be ruled on immediately following its presentation to the court.” Florida Bar re Amendment to Fla. Rules of Judicial Admin., 609 So.2d 465, 466 (Fla.1992). When a trial court fails to act in accord with the statute and procedural rule on a motion to disqualify, an appellate court will vacate a trial court judgment that flows from that error.

Id. at 1065. As an additional matter, this Court found that the lower court’s focus on the petitioner’s failure to request a hearing on the disqualification motion was inappropriate. While this Court acknowledged that the petitioner should have requested a hearing to ensure that the trial court considered his motion, it noted that the rules did not require such a request to be made. Accordingly, this Court held that the failure of the trial judge to give an immediate ruling on the motion to disqualify violated rule 2.160. We agree with this reasoning.

While no case explicitly defines “immediate” as used by rule 2.160, an examination of the rule’s history is instructive. Prior to the adoption of Florida Rule.of Judicial Administration 2.160, Florida Rule of Civil Procedure 1.432 governed the procedure for judicial disqualification. Rule 1.432, which was repealed October 8, 1992, effective January 1, 1993, provided in part:

(d) Determination. The judge against whom the motion is directed shall determine only the legal sufficiency of the motion. The judge shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall enter an order of disqualification and proceed no further in the action.

Fla. R. Civ. P. 1.432 (1992). Rule 2.160 added new language which required a trial judge to rule immediately on the legal sufficiency of a disqualification motion. This Court rejected proposed language that gave a judge greater time for consideration: “[W]e do not adopt that portion of the committee’s recommendation allowing a judge to defer ruling on a disqualification motion until after completion of the evidence or receipt of the verdict. We find the motion should be ruled on immediately following its presentation to the court.” Fla. Bar re Amendment to Fla. Rules of Jud. Admin., 609 So.2d 465, 466 (Fla.1992).

Thus, based upon the reasoning of Fuster-Escalona and the history behind the enactment of the rule, we hold that a motion for judicial disqualification filed pursuant to Florida Rule of Judicial Administration 2.160 must be ruled on within thirty days following its presentation to the court. We believe that thirty days gives the trial court sufficient time to determine the sufficiency of a motion. A litigant who files a motion for disqualification should not be required to file a petition for a writ of mandamus to compel a trial judge to provide a ruling on the motion. However, because this holding is to apply prospectively, we approve the decision of the Third District. Additionally, we request that the Florida Bar Judicial Administration Rules Committee draft an amendment to rule 2.160 consistent with the opinion in this case.

It is so ordered.

ANSTEAD, C.J., and WELLS, J., and SHAW, Senior Justice, concur.

PARIENTE and LEWIS, JJ., concur in result only.

      . The Calder Mobile is a sculpture by Alexander Calder.

      . A hearing was held on July 25, 2000, on Jacoboni's motion for leave to amend his complaint to assert a claim for punitive damages. Jacoboni filed the motion pursuant to section 768.72(1), Florida Statutes (1999), which provides in relevant part: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.”