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State v. Breault9/6/1994
a "no incarceration" decision made at the defendant's arraignment when it became aware of recent, undisclosed DUI convictions. We held that the court was properly exercising its inherent authority to correct mistakes caused by incomplete information, and the court was correct in treating the case as it should have from the outset. Id. at 128, 589 A.2d at 325. Strong policy reasons support the trial court's authority to correct this type of mistake. It prevents enforcement of unintended judgments and eliminates the necessity of appeal when this type of mistake occurs. See In re Waite, 140 Vt. 628, 630, 443 A.2d 462, 463 (1982) (enforcement of unintended judgment is unacceptable). Here, the trial court should simply have corrected the mistaken transfer by retaining jurisdiction when it realized the transfer had been based on a misunderstanding and then treating the case as it would have had the mistaken transfer not occurred.
The court did not exercise the discretion required in transfer motions when it failed to conduct a hearing and issue appropriate findings of fact. See State v. Powers, 136 Vt. 167, 169, 385 A.2d 1067, 1068 (1978) (sound judicial discretion required when transferring cases to juvenile court). The trial court exercised no discretion here. See State v. Willis, 145 Vt. 459, 467-68, 494 A.2d 108, 112 (1985) (failure to exercise discretion, when called for, constitutes an abuse of discretion).
Finally, the State argues that, on remand, a different Judge should preside to avoid any possibility of prejudice. Contrary rulings alone, no matter how numerous or erroneous, are not sufficient to show prejudice to justify disqualification. Ball v. Melsur Corp., 161 Vt. , , 633 A.2d 705, 713 (1993). The State must show that the circumstances are such that a "'perfectly honest and competent Judge would in fact be unable to afford a litigant such an absolutely impartial trial as the law intends and requires.'" Leonard v. Willcox, 101 Vt. 195, 216, 142 A. 762, 771 (1928) (quoting Powers v. Commonwealth, 114 Ky. 237, 70 S.W. 644, 651 (Ky. 1902)). The State has made no such showing to support its request to disqualify Judge Fisher.
Reversed and remanded.
BY THE COURT: Frederic W. Allen, Chief Justice
Ernest W. Gibson III, Associate Justice
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R, Johnson, Associate Justice
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