STATE OF FLORIDA, APPELLANT,
v.
GEORGE LOUIS UPTON, APPELLEE
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The Florida District Court of Appeal reversed a trial court's dismissal of a burglary and grand theft information, holding that the trial court improperly applied the legal standard for Rule 3.190(c)(4) motions to dismiss and that the defendant's motion failed to comply with procedural requirements for sworn motions.
The court held that the trial court improperly dismissed the information because: (1) on a Rule 3.190(c)(4) motion, all inferences are resolved against the defendant, and the State need show only a prima facie case, not exclude all reasonable hypotheses of innocence; (2) when evidence is circumstantial, the question of whether the State has excluded all reasonable hypotheses must be decided at the close of all evidence; and (3) the defendant's motion failed to comply with the requirement that it be sworn to by the defendant personally, as the attorney's oath that it was true 'to the best of his knowledge' based on what others told him does not satisfy the statutory requirement.
[1] A motion to dismiss under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, must allege specific facts and be sworn to by the defendant.
[2] A sworn motion requires the declarant to state on oath that the alleged facts are true to their knowledge, not merely that they believe them to be true based on informati…
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Join FLexlaw to unlock all legal intelligence“Where the undisputed material facts do not legally constitute the crime charged, or they affirmatively establish a valid defense, a motion to dismiss should be granted. Where, however, the undisputed facts permit the conclusion that the defendant could be found guilty, the motion must be denied.”
Establishes the legal standard for Rule 3.190(c)(4) motions to dismiss—determining whether facts constitute a prima facie case as a matter of law.
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Join FLexlaw to unlock all legal intelligenceThe appellee and a co-defendant were charged with burglary of a structure and grand theft. The trial court dismissed the information after concluding …
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ORFINGER, Judge.
The State appeals1 the dismissal of an information pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure. We reverse.
The appellee and a co-defendant had been charged with burglary of a structure and grand theft. The trial court dismissed the information because it concluded from the motion that the State’s case was circumstantial and did not exclude every reasonable hypothesis of innocence. The State orally traversed the motion, and there was no objection to the form of the traverse.
The function of a “(c)(4)” motion to dismiss is to ascertain whether or not the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case of guilt of the accused. State v. Davis, 243 So. 2d 587 (Fla.1971). Where the undisputed material facts do not legally constitute the crime charged, or they affirmatively establish a valid defense, a motion to dismiss should be granted. Where, however, the undisputed facts permit the conclusion that the defendant could be found guilty, the motion must be denied. State v. De Jerinett, 283 So. 2d 126 (Fla.2d DCA), cert. denied 287 So. 2d 689 (Fla.1973).
Unlike the standard to be employed by a jury when it considers the evidence, on a “(c)(4)” motion all inferences are resolved against the defendant. De Jerinett, supra. Here, while much of the evidence is circumstantial, it cannot be said that the recited “facts” do not establish a prima facie case of guilt against the defendant. In considering such a motion, the trial court should not determine fact issues or consider the weight of conflicting evidence or the credibility of witnesses. State v. Fort, 380 So. 2d 534 (Fla. 5th DCA 1980). If the State’s evidence is all circumstantial, then whether it has carried its burden of excluding all reasonable hypotheses of innocence must be decided at the close of all the evidence. To withstand a motion to dismiss, the State need show only a prima facie case. State v. Cramer, 383 So. 2d 254 (Fla.2d DCA 1980). See also Ritter v. State, 390 So. 2d 168 (Fla. 5th DCA 1980). The State orally traversed the key allegation of defendant’s motion, and there was no objection to the form of the traverse. Although the rule undoubtedly requires the traverse to be in writing, this requirement can be waived. Turner v. State, 388 So. 2d 254 (Fla. 1st DCA 1980). The motion as filed did not require dismissal even in the absence of a traverse.
Although the foregoing is sufficient basis for our decision here, we must point to a further serious flaw in the motion. A motion to dismiss under Florida Rules of Criminal Procedure 3.190(c)(4) must specifically allege the facts on which the motion is based and the motion must be sworn to. The motion sub judice was a narrative of “facts” by the attorney and much of it consisted of a recitation of his interviews with witnesses and what he believed these witnesses would say. The attorney then swore that the motion was true “to the best of his knowledge.” This does not satisfy the requirement of a “sworn motion” as required by the Rule.
To “swear” means to declare on oath the truth (of a pleading, etc.). Black’s Law Dictionary, 5th Ed. (1979). This requires that the declarant state on oath that the fact alleged is true, to his knowledge, not that he believes it to be true because someone else has told him that it is. As the court said in State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979):
The trial court could have and should have denied Huggins’ motion to dismiss for its failure to comply with Rule 3.190(cX4). The motion was not sworn to by Huggins....
Id. at 120. See also Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA), cert. denied 352 So. 2d 175 (Fla.1977), and State v. Kling, 335 So. 2d 614 (Fla.2d DCA 1976). A motion to dismiss under this rule should be summarily denied when it is not sworn to by the defendant who, by taking the oath, thus subjects himself to the penalties of perjury if his recitation of “undisputed facts" is false.
The order dismissing the information is reversed and the cause is remanded for further proceedings consistent herewith.
REVERSED and REMANDED.
DAUKSCH, C. J., and COBB, J., concur. . Rule 9.140(c)(1)(A), Florida Rules of Appellate Procedure.
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Cited By (53 total)
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State v. Hunwick, 446 So. 2d 214 (Fla. 4th DCA 1984)…. West, 262 So. 2d 457 (Fla. 4th DCA 1972). On a motion to 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…
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Perez v. State, 418 So. 2d 1107 (Fla. 3d DCA 1982)…PER CURIAM. Affirmed. Fla. R. Crim. P. 3.190(c)(4); State v. Aaron, 409 So. 2d 1214 (Fla. 2d DCA 1982); State v. Bethea, 409 So. 2d 1139 (Fla. 2d DCA 1982); State v. Holder, 400 So. 2d 162 (Fla. 3d DCA 1981); State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981). State v. Benitez, 395 So. 2d 514 (Fla. 1981).…
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State v. Walthour, 876 So. 2d 594 (Fla. 5th DCA 2004)…sh a prima facie case, as a matter of law, so as to permit a jury to determine the defendant guilty of the crime charged. State v. Williams, 539 So. 2d 575 (Fla. 5th DCA 1989); State v. Raulerson, 403 So. 2d 1102 (Fla. 5th DCA 1981); State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981). The appellate standard of review is de novo. Bell v. State, 835 So. 2d 392 (Fla. 2d DCA 2003). In this case, Walthour’s motion sets forth the undisputed facts, coupled with the photographs of the two knives. The motion to dismi…
Previewing 3 of 53 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)
- State v. Davis, 243 So. 2d 587 (Fla. 1971)
- State v. Fort, 380 So. 2d 534 (Fla. 5th DCA 1980)
- State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979)
- State v. de Jerinett, 283 So. 2d 126 (Fla. 2d DCA 1973)
- State v. Kling, 335 So. 2d 614 (Fla. 2d DCA 1976)
- Turner v. State, 388 So. 2d 254 (Fla. 1st DCA 1980)
- DeJERINETT v. State, 287 So. 2d 689 (Fla. 1973)
- State v. Cramer, 383 So. 2d 254 (Fla. 2d DCA 1980)
- Ambassador Ins. Co. v. Highlands Gen. Hosp., 383 So. 2d 254 (Fla. 2d DCA 1980)