STATE OF FLORIDA, APPELLANT,
v.
THOMAS POWER, APPELLEE
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The trial court erred in granting the motion to dismiss because the State filed a sworn traverse denying material factual allegations.
The defendant filed a motion to dismiss an information charging grand theft, alleging specific facts. The State filed a sworn traverse denying a mater…
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DANAHY, Judge.
Appellant, the State of Florida, contends that the trial court erred in granting the motion to dismiss filed by appellee Thomas Power who was the defendant in the court below. We agree.
After appellee filed his motion to dismiss an information charging him with grand theft in the second degree in violation of Section 812.014(2)(b), Florida Statutes (1977), the state filed a sworn traverse which specifically denied a material portion of the factual allegations contained in the motion. Fla.R.Crim.P. 3.190(d) states that “A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss.” Accordingly, the trial court should have denied appellee’s motion. State v. Wardlow, 356 So. 2d 901 (Fla. 2d DCA 1978).1
We reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.
GRIMES, C. J., and BOARDMAN, J., concur. . We also note in passing that appellee presented his factual allegations by way of deposition testimony from several witnesses. This led to inconsistencies in appellee’s facts and thus made the case one which did not lend itself to disposition by a motion to dismiss since a motion to dismiss is ordinarily granted in a typical case only when all the relevant facts are clear.
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State v. Benny Lee Green, 400 So. 2d 1322 (Fla. 5th DCA 1981)…rt that Green’s resistance was or was not, as a matter of law, with violence.2 If, based on the undisputed facts, a jury question exists, a (c)(4) motion to dismiss should not be granted. Ellis v. State; State v. DeJerinett; See also State v. Power, 369 So. 2d 96 (Fla. 2d DCA 1979). Moreover, where the relevant and undisputed facts are not clear, a (c)(4) mo [*1324] tion should not be granted. The rule is that upon a motion to dismiss, the state is entitled to the construction most favorable to it, and all…
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State v. Johnson, 398 So. 2d 500 (Fla. 3d DCA 1981)…by the state’s sworn traverse, as in the instant case, the trial court has no discretion in the matter and must deny the motion. State v. Wright, 386 So. 2d 583 (Fla. 4th DCA 1980); State v. Fort, 380 So. 2d 534 (Fla. 5th DCA 1980); State v. Power, 369 So. 2d 96 (Fla. 2d DCA 1979); State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979); State v. Cook, 354 So. 2d 909 (Fla. 2d DCA), cert. dismissed, 359 So. 2d 1212 (Fla.1978); Ellis v. State, supra; State v. Hamlin, 306 So. 2d 150 (Fla. 4th DCA 1975). In additi…
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State v. Shular, 400 So. 2d 781 (Fla. 3d DCA 1981)…’s motion to dismiss pursuant to Florida Rules of Criminal Procedure 3.190(c)(4) where the state had filed a sworn traverse specifically denying material factual matters related in the sworn motion to dismiss. Fla.R.Crim.P. 3.190(d). State v. Power, 369 So. 2d 96 (Fla. 2d DCA 1979); State v. Cook, 354 So. 2d 909 (Fla. 2d DCA 1978); State v. Whitehead, 353 So. 2d 900 (Fla. 3d DCA 1977); Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977), cert. denied, 352 So. 2d 175 (Fla.1977). Reversed and remanded for fur…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wardlow, 356 So. 2d 901 (Fla. 2d DCA 1978)
- Neff v. State, 356 So. 2d 901 (Fla. 1st DCA 1978)