An interesting question has come before Florida courts: Should the state attorney's office have to step down from a case because the top prosecutor had consulted with the defendant before taking public office?

That was the question before Florida's Third District Court of Appeal as defendant Keith Knespler sought to disqualify the office of Monroe County State Attorney Dennis W. Ward.

Knespler was convicted of burglary of a dwelling and grand theft over $20,000. He had consulted with Ward on that case while the attorney was still in private practice. Ward had declined the case. Ward later rose to state attorney, causing Knespler to allege that the prosecutor would use confidential information from that meeting against him.

A divided appellate panel sided with the state attorney's office, but not before the court chided the prosecutor.

Third DCA Judges Norma S. Lindsey and Monica Gordo wrote they were "troubled" by Ward's voluntary attendance at Knespler's trial. They stated Ward's presence at the trial of a defendant that "had previously consulted and shared confidential information [with Ward] for the same offense can potentially have a chilling effect."

Yet, Lindsey and Gordo did not find Ward's repeated appearance at the trial sufficient to grant Knespler's motion to disqualify the Monroe County State Attorney's Office in the case.

Knespler's attorney unsuccessfully filed motions to disqualify but failed to object to Ward's presence during the trial.

The appellate majority stated these motions failed to bring to the trial court's attention the critical fact of Ward's presence at trial to warrant the disqualification of the state attorney's Office.

Since the lower court was not given an opportunity to consider Ward's presence in its ruling, the Third DCA was precluded from considering that issue. Essentially, by failing to raise an objection to Ward's presence in the lower court, Knespler was deemed to have waived that objection as a basis for disqualification.

Read the full Third DCA opinion:

'Poor judgment'

Ward removed himself from the state attorney office's handling of the case and did not consult with any prosecutor in the office about the case, according to prosecutors. His office argued that unlike the conflict-of-interest rule for private law firms, when a state attorney's office hires someone who has a conflict, the new hire does not automatically result in the disqualification of the entire office, so long as the new hire doesn't participate in any capacity in the case that poses a conflict of interest, according to Rule -4.11 (d) of the Special Conflicts of Interest for Former and Current Government Officers and Employees.

Third DCA Judge Eric Hendon dissented from his colleagues' majority opinion, stating that the trial court "abused its discretion" by denying Knespler's motion to disqualify the entire state attorney's office.

In his dissent, Hendon stated that Ward's decision to appear at the trial and sentencing displayed "poor judgment," and the state attorney's office should be disqualified in the case.

Hendon noted that Ward knew that Knespler "had already unsuccessfully moved to disqualify the entire state attorney's office based on the confidential information disclosed" to Ward during their consultation. In fact, Judge Hendon concluded that Ward's appearance was more than "just poor judgment."

Judge Hendon observed that at the trial, the lower court judge had a "bird's-eye view of everyone who entered the courtroom and sat in the gallery." Because of that, the lower court judge was fully aware of Ward's presence in the context of Knespler's motion to disqualify.

"The case law is pretty clear in situations like this," Ward said. "That's why the sentence was not overturned. That's the bottom line. The dissenting judge may have speculated to what information I may have obtained from the defendant; therefore, he wrote his opinion the way he wrote his opinion."

While the judges were not unanimous in their ruling on the effect Ward's presence in the courtroom had on the case, they did agree to reduce one of Knespler's charges from grand theft to petit theft, which is a second-degree misdemeanor. The court justified the reduction in the charge based upon the expert witness testimony presented by the state attorney's office on the value of the goods that were stolen.