STATE OF FLORIDA, APPELLANT,
v.
RAY EARL FETHEROLF, APPELLEE
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The State of Florida appealed a trial court's dismissal of sexual battery and lewd assault charges against Ray Earl Fetherolf. The trial court dismissed based on the victim's inconsistent statements, but the appellate court reversed, holding that a sworn state traverse creating factual disputes is sufficient to defeat a motion to dismiss and that credibility determinations are improper at the dismissal stage.
The court reversed the dismissal, holding that the State's sworn traverse is entitled to the most favorable construction and creates material disputed facts that preclude dismissal at the motion stage. The trial court erred in determining factual issues, weighing conflicting evidence, and assessing witness credibility at the dismissal stage rather than allowing the case to proceed to trial.
[1] A motion to dismiss a criminal information requires the State to present evidence sufficient to sustain a conviction.
[2] A sworn traverse filed by the State in response to a motion to dismiss creates material disputed facts.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To counter a motion to dismiss, the state need not produce evidence sufficient to sustain a conviction. The proceeding is not designed to create a trial by affidavit or a "dry run" of a trial on the merits.”
Establishes the standard for responding to a motion to dismiss—the State has a lower burden than at trial and the proceeding should not be treated as a trial-like proceeding.
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Join FLexlaw to unlock all legal intelligenceFetherolf was charged with sexual battery on a child over 11 but under 18 and lewd assault on a child under 14—his own daughter. The alleged victim pr…
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SHARP, Judge.
The trial court dismissed a criminal information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), because there were no material disputed facts and the undisputed facts did not establish a prima facie case of guilt against the defendant, Ray Earl Fetherolf. The State of Florida appeals. We reverse.
The defendant was charged with sexual battery upon a child older than 11 but less than 18 years of age and lewd assault on a female child under 14 years of age. The alleged victim is the defendant’s daughter. She gave investigators two statements in her own handwriting. The statements were notarized and dated October 10, 1978 and October 26, 1978. They detailed the defendant’s commission of the acts charged. Shortly after making the October 10, 1978 statement, the child was placed in Orange County’s “home” for dependent children, Great Oaks Village. The defendant was arrested but released on bail. The child remained in Great Oaks Village. On November 27,1978, the child gave a deposition in which she disclaimed her original statements; said the police officers had told her what to say; and expressed a desire to go home.
The defendant’s motion to dismiss was based on the child’s deposition. In response, the state filed a sworn traverse under Rule 3.190(d) denying the truth of the child’s statements given at deposition, and attaching her earlier statements given under oath. The lower court’s dismissal was based on the well-entrenched rule applicable at trials in Florida, that a witness’ prior inconsistent statement cannot be used as substantive evidence, but can only be used for the purpose of impeachment.1 Because the alleged crime took place prior to July 1, 1979, the “new” Evidence Code § 90.801(2)(a) would not be applicable to the trial of this case, and we do not reach the question of whether or not the statements would be admissible as substantive evidence under the Code.
However, this case does not turn on whether the statements are admissible at trial, or whether the defendant would be entitled to a judgment of acquittal after a trial at which the statements were admitted. The child in this case may conceivably testify still differently at a trial, or she may adopt her first statements. It is improper to speculate about what may occur at a trial which has yet to happen, at this stage of the case.
To counter a motion to dismiss, the state need not produce evidence sufficient to sustain a conviction. The proceeding is not designed to create a trial by affidavit or a “dry run” of a trial on the merits. Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977). The factual allegations in the state’s traverse need not be based upon personal knowledge nor “shored up” by an affidavit by the victim. State v. Hamlin, 306 So. 2d 150 (Fla. 4th DCA 1975).
The state here vouched under oath for the veracity of the victim’s first statements, and attached them to the traverse. The state is entitled to the most favorable construction of its traverse and attachment, analogous to the summary judgment procedure afforded by the Rules of Civil Procedure.2 They create material disputed facts. It is not proper at this stage for the court to determine factual issues, consider weight of conflicting evidence, or credibility of witnesses.3 Because the state’s sworn traverse is this case was sufficient it was error to dismiss the information.
We reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.
REVERSED and REMANDED.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur. .Rankin v. State, 143 So. 2d 193 (Fla.1962); Smith v. State, 379 So. 2d 996 (Fla. 5th DCA 1980); Hill v. State, 355 So. 2d 116 (Fla. 4th DCA 1978).
. State v. Davis, 243 So. 2d 587 (Fla.1971).
. State v. J.T.S. and G.R.W., 373 So. 2d 418 (Fla. 2d DCA 1979).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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State v. Ortiz, 766 So. 2d 1137 (Fla. 3d DCA 2000)…smiss, the state is entitled to a construction most favorable to it; all inferences are resolved against the defendant.”). To counter a motion to dismiss, the state need not adduce evidence sufficient to sustain a conviction. See State v. Fetherolf, 388 So. 2d 38, 39 (Fla. 5th DCA 1980) (holding that “[t]o counter a motion to dismiss, the state need not produce evidence sufficient to sustain a conviction. The proceeding is not designed to create a trial by affidavit or a ‘dry run’ of a trial on the merits”).…
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State v. Hunwick, 446 So. 2d 214 (Fla. 4th DCA 1984)…o dismiss, the state is entitled to a construction most favorable to it; all inferences are resolved against the defendant. State v. Green, 400 So. 2d 1322 (Fla. 5th DCA 1981); State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981); State v. Fetherolf, 388 So. 2d 38 (Fla. 5th DCA 1980). So long as the state shows the barest prima facie case, it should not be prevented from prosecuting. State v. Pentecost, 397 So. 2d 711 (Fla. 5th DCA 1981). The defendant is protected in that if the state’s case is insufficient…
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State v. Benny Lee Green, 400 So. 2d 1322 (Fla. 5th DCA 1981)…ot be granted. The rule is that upon a motion to dismiss, the state is entitled to the construction most favorable to it, and all inferences are resolved against the defendant. State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981); State v. Fetherolf, 388 So. 2d 38 (Fla. 5th DCA 1980); State v. DeJerinett. Construed in the light most favorable to the state, the facts establish a prima facie case of resisting arrest with violence, which was not negated by the movant. Since this case must be reversed and remand…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)
- State v. J. T. S. and G. R. W., 373 So. 2d 418 (Fla. 2d DCA 1979)
- Rankin v. State, 143 So. 2d 193 (Fla. 1962)
- State v. Davis, 243 So. 2d 587 (Fla. 1971)
- State v. Hamlin, 306 So. 2d 150 (Fla. 4th DCA 1975)
- Hill v. State, 355 So. 2d 116 (Fla. 4th DCA 1978)
- Horton v. State, 379 So. 2d 996 (Fla. 1st DCA 1980)
- Smith v. State, 379 So. 2d 996 (Fla. 5th DCA 1980)