THE STATE OF FLORIDA, APPELLANT,
v.
JAMES MERRITT, APPELLEE
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The State appealed the trial court's dismissal of an attempted first-degree murder charge against James Merritt based on self-defense. The appellate court reversed, holding that the trial court erred in granting Merritt's motion to dismiss where the State filed a sworn traverse specifically denying the material facts alleged in the motion.
The trial court erred in granting the motion to dismiss because Florida Rules of Criminal Procedure 3.190(d) mandatorily requires denial of a self-defense dismissal motion when the State files a sworn traverse that specifically denies the material facts alleged. Additionally, neither the State's inability to find witnesses nor its failure to provide correct witness addresses constitutes sufficient grounds for dismissal.
[1] A motion to dismiss an information based on self-defense must be denied if the State files a sworn traverse specifically denying the material facts alleged in the motion.
[2] A trial court errs in dismissing a case due to the State's inability to locate its witnesses.
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Join FLexlaw to unlock all legal intelligence“a motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss”
Establishes the mandatory legal standard requiring denial of self-defense dismissal motions when the State files a specific sworn traverse denying material facts
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Join FLexlaw to unlock all legal intelligenceJames Merritt was charged with attempted first-degree murder and unlawful possession of a firearm while engaged in a criminal offense. Merritt filed a…
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PER CURIAM.
The state brings this appeal from an order dismissing an information filed against James Merritt.
On the basis of self-defense, defendant James Merritt filed a sworn motion to dismiss an information, charging him with attempted first degree murder and the unlawful possession of a firearm while engaged in a criminal offense. In response thereto, the State filed a traverse, specifically denying the factual allegations of the defendant’s motion. The traverse commented that although the defendant stated that “he shot the victim after the victim slapped him and was standing six feet away, this does not indicate that the victim was threatening or attacking the defendant when the defendant shot the victim. Furthermore, ... eyewitness Nealy states: That the victim did not have a weapon, a fact substantiated by the defendant himself ... that the victim was unarmed”. At the hearing on the motion, the trial court considered the motion, the traverse, and the arrest affidavit. Just prior to dismissing the case, defense counsel stated that “... the State cannot find its witnesses, and neither can I; ... never supplied a correct address to me”.
It was error to grant the defendant’s sworn motion to dismiss where the State filed a sworn traverse specifically denying the material facts alleged by the defendant. The language of Florida Rules of Criminal Procedure 3.190(d) is to the effect that “a motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss”, [emphasis supplied] This language is mandatory. See: Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977). If the case was dismissed because of the assertion of defense counsel that “.. . the State cannot find its witnesses”, then the trial court was in error. See: Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979). Also, if the dismissal was based upon the failure of the State to provide the defense with the correct address of a witness this too would be an insufficient ground for dismissal. See: Richardson v. State, 246 So. 2d 771 (Fla.1971).
Therefore, the order under review be and the same is hereby reversed and the cause is returned to the trial court for further proceedings.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Mesa, 395 So. 2d 242 (Fla. 3d DCA 1981)…ance to the defense of the informants’ testimony, the action taken below was unjustified. The state is not ordinarily obliged, at pain of dismissal, even to produce prosecution, much less defense, witnesses for deposition or trial. State v. Merritt, 394 So. 2d 531 (Fla. 3d DCA 1981); State v. Ashley, 393 So. 2d 1168 (Fla. 3d DCA 1981) (1981); Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So. 2d 761 (Fla.1980); State v. Banks, 349 So. 2d 736 (Fla. 3d DCA 1977); State ex rel. Gerstein v.…
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State v. Marlow K. Smulowitz, 482 So. 2d 1388 (Fla. 3d DCA 1986)…ingly, the trial court was free to rule on the merits of the motion based on the material undisputed facts sworn to below. See State v. Oberholtzer, 411 So. 2d 376 (Fla. 4th DCA), pet. for review denied, 419 So. 2d 1199 (Fla.1982); State v. Merritt, 394 So. 2d 531, 532 (Fla. 3d DCA 1981); Ellis v. State, 346 So. 2d 1044, 1046 (Fla. 1st DCA), cert. denied, 352 So. 2d 175 (Fla.1977); see also State v. Holliday, 431 So. 2d 309, 311 (Fla. 1st DCA 1983). Affirmed. HUBBART and NESBITT, JJ., concur.…
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State v. Jacquiline Daise, 508 So. 2d 560 (Fla. 4th DCA 1987)…witness should not be held in contempt; hold the witness in contempt; issue a writ of body attachment; or impose other sanctions. Only the state however, may dispose of the case by a nolle prosequi. Cf. Wilson; Evans; Lowe; Valdes; State v. Merritt, 394 So. 2d 531 (Fla. 3d DCA 1981); Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979), [*561] cert. denied, 385 So. 2d 761 (Fla.1980); State v. Carda, 495 So. 2d 912 (Fla. 3d DCA 1986). We therefore reverse and remand for further proceedings. ANSTEAD and WALDE…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)
- Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979)