STATE OF FLORIDA, APPELLANT,
v.
CLYDE BETHEA, APPELLEE
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The State appealed the dismissal of a charge against Bethea for carrying a concealed firearm. The trial court erred by granting Bethea's motion to dismiss on the ground that the firearm was not concealed as a matter of law, when the concealment issue presented a factual question for the jury.
The trial court erred in dismissing the charge. The question of whether the firearm was concealed presents a factual dispute that must be resolved by a jury, not by the court as a matter of law. A firearm need not be invisible to constitute concealment under the statute.
[1] A motion to dismiss a criminal information under Rule 3.190(c)(4) must be sworn to by a person with direct knowledge of the asserted facts, and an attorney's attestation…
[2] A disputed question of whether a firearm was concealed is a factual issue for the trier of fact, not a matter for summary dismissal.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Criminal Procedure 3.190(c)(4) requires that the motion to dismiss be sworn to by one having direct knowledge of the facts asserted.”
Establishes the procedural requirement for proper swearing of motions to dismiss
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Join FLexlaw to unlock all legal intelligenceDeputy Smith approached Bethea's truck and observed the butt of a pistol on the floorboard of the vehicle through the open door. The pistol was partia…
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RYDER, Judge.
The state appeals from the dismissal of its information against Clyde Bethea, alleging the lower court erred in granting appel-lee Bethea’s motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We reverse.
The state charged appellee with carrying a concealed firearm. Appellee’s motion to dismiss alleged:
6. That the officer walked up to the side of the truck with the door open. That upon approaching the truck, the officer could see the butt of the gun immediately. That the approaching officer could see the gun in plain view and the gun was not under the seat but in front of the seat and the officer said you could probably have seen the whole gun if you had looked through the front of the truck, but he just had a side view of it from looking in the door of the truck.
7. The officer then testified he did not have to search for the gun.
Appellee’s attorney swore that the motion was true to the best of his knowledge and belief. The state filed a motion to strike the motion on the ground that it was not sufficiently sworn to. The court denied the motion to strike in that it did not fall within the purview of State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981).
On the date of the hearing on the motion to dismiss, the state filed a demurrer, adding the following facts:
1. The defendant stated to Deputy W. R. Smith of the Pasco County Sheriff’s Department that he had the pistol because he was coming back to his old town (Dade City) and had the gun for his own protection.
2. The pistol was held up and partially concealed by the carpet/rubber matting of the floorboard of the vehicle.
3. The pistol was not encased.
4. The pistol could not be seen at all without opening the vehicle door and only a small portion of the butt was observable by the deputy with the door open.
The trial court granted the motion, holding that as a matter of law the firearm was not concealed. The court relied on State v. Day, 301 So. 2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So. 2d 748 (Fla.1975) and Porchay v. State, 321 So. 2d 439 (Fla. 1st DCA 1975).
We hold that the lower court erred in granting the motion to dismiss. Florida Rule of Criminal Procedure 3.190(c)(4) requires that the motion to dismiss be sworn to by one having direct knowledge of the facts asserted. State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981); see State v. Kling, 335 So. 2d 614 (Fla. 2d DCA 1976). The attestation of counsel below, that the motion was true to the best of his knowledge and belief, was inadequate to withstand summary dismissal.
Additionally, the motion filed below failed to show lack of a prima facie case. The facts tend to show that appellee had a firearm on the floor of his car. While the position and visibility of the gun are not disputed, it was disputed whether the firearm was concealed. The disputed question of concealment goes to the trier of fact, which should have been a jury below. State v. Sellers, 281 So. 2d 397 (Fla. 2d DCA 1973). The firearm need not be invisible to come within the statute’s meaning of concealment. Ensor v. State, 403 So. 2d 349 (Fla.1981). The lower court thus inappropriately resolved the disputed fact of concealment in favor of appellee.
The grant of dismissal below is REVERSED and the case REMANDED for further proceedings.
SCHEB, C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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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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Goodmakers v. State, 450 So. 2d 888 (Fla. 2d DCA 1984)…was Goodmakers, not his attorney. Thus, notwithstanding the declaration by Goodmakers’ attorney that the facts asserted in the motion were true to the best of the attorney’s knowledge, the motion was subject to a summary denial. See State v. Bethea, 409 So. 2d 1139 (Fla. 2d DCA 1982); Kling; Upton; State v. Holder, 400 So. 2d 162 (Fla. 3d DCA 1981). However, the state failed to submit a motion to strike on this basis. Compare Bethea; Holder. In sum, it waived the objection. See State v. Mayle, 406 So. 2d 108,…
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State v. Clemon Lewis, 463 So. 2d 561 (Fla. 2d DCA 1985)…n. SCHEB and SCHOONOVER, JJ., concur. . The motion to dismiss which set forth numerous facts was sworn to only by appellee’s attorney. The motion should have been dismissed for this reason without regard to its substantive merits. State v. Bethea, 409 So. 2d 1139 (Fla. 2d DCA 1982). However, the state was not entirely blameless. The oath signed by the state attorney on the traverse followed the certificate of service, thereby leaving the impression that it only referred to the propriety of service upon oppos…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)
- State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981)
- State v. Kling, 335 So. 2d 614 (Fla. 2d DCA 1976)
- State v. Elmus R. Sellers, 281 So. 2d 397 (Fla. 2d DCA 1973)
- State v. DAY, 301 So. 2d 469 (Fla. 1st DCA 1974)
- Porchay v. State, 321 So. 2d 439 (Fla. 1st DCA 1975)
- State v. DAY, 312 So. 2d 748 (Fla. 1975)
- Watzel v. State, 312 So. 2d 748 (Fla. 1975)