THE STATE OF FLORIDA, APPELLANT,
v.
DAVID R. TORRES, APPELLEE
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The State of Florida appealed a trial court's order granting a defendant's motion to dismiss an information charging him with carrying a concealed firearm. The appellate court reversed, holding that the defendant's motion to dismiss was legally insufficient as a matter of law and should have been summarily denied by the trial court.
The court held that the defendant's motion to dismiss was legally insufficient on its face and should have been summarily denied because it failed to allege that material facts were undisputed, failed to describe what those material facts were, and failed to demonstrate that any undisputed facts negated guilt or established a valid defense. The court also held that relying on an arrest affidavit attached to or referenced in a motion is not equivalent to alleging the material undisputed facts within the motion itself as required by the rule.
[1] A motion to dismiss an information under Fla.R.Crim.P. …
[2] A motion to dismiss under Fla.R.Crim.P. …
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Join FLexlaw to unlock all legal intelligence“All of the above are essential prerequisites to a legally sufficient motion to dismiss under Fla.R.Crim.P. 3.190(c)(4).”
Establishes that a motion to dismiss must allege undisputed material facts, describe them, and show they negate guilt or establish a valid defense
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Join FLexlaw to unlock all legal intelligenceDavid R. Torres was charged by information with carrying a concealed firearm under Florida law. Torres filed a sworn motion to dismiss arguing that th…
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HUBBART, Judge.
This is an appeal by the State of Florida from an order granting a motion to dismiss an information under Fla.R.Crim.P. 3.190(c)(4) entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. We have jurisdiction to entertain this appeal. § 924.07(1), Fla.Stat. (1977).
The state contends, and the defendant does not deny, that the motion to dismiss filed herein under Fla.R.Crim.P. 3.190(c)(4) was legally insufficient, that it did not require the filing of a traverse or demurrer from the state, and that it should have been summarily denied by the trial court. We agree and reverse.
The defendant was charged by information with carrying a concealed firearm [§ 790.01(2), Fla.Stat. (1977)]. The defendant filed a sworn motion to dismiss this information which states as follows:
“COMES NOW, DAVID REYES TORRES, by and through his undersigned attorney, and files this, his Sworn Motion to Dismiss, and alleges as follows:
1. That the arrest report dated December 23, 1978, contains a narrative of what the arresting officers observed on the day in question.
2. That said report does not state that the pistol in question was hidden from the ordinary sight of another person.
3. That said report unequivocally states that the arresting officer clearly saw the pistol in question, which was visible to the ordinary person since the Defendant’s shirt was ‘unbuttoned.’
4. That at no point in said narrative does the arresting officer state that the pistol was ‘concealed,’ ‘hidden’ or ‘covered’; in fact, he states that it was immediately ascertainable to him.
5. That proof of concealment is an essential element of the crime of carrying a concealed firearm, and such element must be proven beyond a reasonable doubt.
6. That the Defendant, on December 23, 1978, resided in the building in which said arrest took place.
7. That the order to ‘halt’ and the ensuing arrest took place a number of feet away from the Defendant’s apartment door. 8. That the said area was in such immediate vecinity [sic] to constitute the ‘curtilage’ area surrounding his home.
9. That subsection (3)(n) of Florida Statutes Section 790.25 specifically exempts a ‘person possessing arms at his home or place of business’ from the prohibitions of Section 790.01.”
The arrest affidavit in the case was apparently attached to the motion to dismiss or was otherwise relied upon by the defendant in support of said motion. The state filed a traverse to this motion denying most of the allegations in the motion to dismiss and setting forth certain additional facts in the case. The trial court heard and granted the defendant’s motion to dismiss. This appeal follows.
On its face, the motion to dismiss was legally insufficient and should have been summarily denied by the trial court. First, the motion fails to allege that the material facts of the case are undisputed. Secondly, the motion fails to describe what the material undisputed facts of the case are. Third, the motion fails to demonstrate that the undisputed material facts do not establish a prima facie case of guilt against the defendant or that such facts establish a valid defense (either an affirmative defense or a negation of an essential element of the charge.) All of the above are essential prerequisites to a legally sufficient motion to dismiss under Fla.R.Crim.P. 3.190(c)(4). State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977). Moreover, relying upon or attaching the arrest affidavit in this case as an adjunct to the motion to dismiss is not the equivalent of alleging the material undisputed facts of the case in the motion as required by the rule. Use of the arrest affidavit is appropriate in support of the facts alleged in the motion, but is not a substitute for such allegations. State v. McIntyre, 303 So. 2d 675 (Fla. 4th DCA 1974). As such, the trial court erred in granting the motion to dismiss in this case.
The order under review is reversed and the cause is remanded to the trial court with directions to summarily deny the defendant’s motion to dismiss. This reversal shall be without prejudice to the defendant to file a legally sufficient sworn motion to dismiss.
Reversed and remanded.
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State v. Marlow K. Smulowitz, 482 So. 2d 1388 (Fla. 3d DCA 1986)…plies with the requirement that “[t]he facts on which such motion is based should be specifically alleged and the motion sworn to.” Fla.R. Crim.P. 3.190(c)(4). See State v. McIntyre, 303 So. 2d 675, 676 (Fla. 4th DCA 1974); see also State v. Torres, 375 So. 2d 889, 891 (Fla. 3d DCA 1979). Moreover, the state’s “traverse/demurrer” failed to deny any material facts in the case and, accordingly, the trial court was free to rule on the merits of the motion based on the material undisputed facts sworn to below. Se…
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State v. Holder, 400 So. 2d 162 (Fla. 3d DCA 1981)…iled to object to the defect). Rule 3.190(c)(4) also requires that the movant demonstrate that the undisputed facts do not establish a prima facie case of guilt or, alternatively, that they establish a valid defense to the charges. State v. Torres, 375 So. 2d 889 (Fla. 3d DCA 1979); State v. Sedlmayer, 375 So. 2d 887 (Fla. 3d DCA 1979); State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979); Ellis v. State, supra. The defendant’s bald assertion that “the undisputed facts do not establish a prima facie case of…
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State v. Ivory Covington, II, 973 So. 2d 481 (Fla. 3d DCA 2007)…to dismiss an information “should have been summarily denied even in the absence of any response from the State” because the defendant “failed to meet his initial burden of demonstrating the complete absence of any material facts”); State v. Torres, 375 So. 2d 889, 890 (Fla. 3d DCA 1979) (stating that “[o]n its face, the motion to dismiss was legally insufficient and should have been summarily denied by the trial court” where it “fail[ed] to demonstrate that the undisputed material facts do not establish a pr…
Authorities Cited
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)
- State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979)
- State v. McINTYRE, 303 So. 2d 675 (Fla. 4th DCA 1974)