STATE OF FLORIDA, APPELLANT,
v.
BENJAMIN SANDERS, APPELLEE
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A motion to dismiss should not be granted if the state's traverse places material facts in issue. The victim's prior inconsistent statement goes to credibility, not admissibility.
Appellee was charged with sexual battery. He moved to dismiss, alleging the victim testified to no penetration. The state traversed, admitting the pri…
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[*1127] PER CURIAM.
Appellee Benjamin Sanders was charged by information with sexual battery. Appel-lee filed a motion to dismiss on the ground that the alleged victim had testified on deposition that appellee had not successfully achieved penetration of her vagina. The state filed a traverse to the motion, admitting the allegations of the motion, but adding the additional fact that the victim would testify at trial that appellee had achieved penetration. The trial court granted the motion to dismiss. We reverse.
A motion to dismiss pursuant to Rule 3.190(c)(4) should not be granted when the state has placed material facts in issue through a traverse to the motion. See Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA), cert. denied, 352 So. 2d 175 (Fla.1977). The state admitted that the victim made one statement under oath denying penetration, but asserted that she would recant this statement at a later time. The traverse suffices to place a material fact in issue. The victim’s prior inconsistent statement does not prevent her from testifying at trial that her assailant achieved penetration; rather the prior inconsistent statement goes merely to the credibility of the witness. The prior statement may be used by appellee to impeach the witness, but it may not serve as a basis for excluding the victim’s testimony that penetration was achieved.
Inasmuch as the state’s traverse was sufficient to place a material fact in issue, the trial-court erred in granting the motion to dismiss. We REVERSE and REMAND for further proceedings consistent with this opinion.
HOBSON, Acting C. J., and BOARD-MAN and OTT, JJ., concur.
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Citator
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State v. Kimball, 390 So. 2d 79 (Fla. 4th DCA 1980)…PER CURIAM. We reverse the trial court’s dismissal of the information in this case since the State filed a traverse which placed material facts in issue. See State v. Sanders, 380 So. 2d 1126 (Fla. 2d DCA 1980). The cause is REVERSED and REMANDED for further proceedings consistent with this opinion. ANSTEAD, BERANEK and HURLEY, JJ., concur.…
Authorities Cited
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)