THE STATE OF FLORIDA, APPELLANT,
v.
ZEB ADDERLY, APPELLEE
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The State appealed the trial court's dismissal of aggravated assault and firearm charges against Adderly. The Third District reversed, holding that the trial court erred in granting a motion to dismiss that failed to comply with procedural requirements and was not based on a valid ground.
The trial court erred in granting the motion to dismiss because it lacked specific factual allegations and was not sworn to, failing to comply with Florida Rule of Criminal Procedure 3.190(c)(4). Additionally, the state is not obliged to produce witnesses for depositions, and failure to do so does not warrant dismissal.
[1] A motion to dismiss an information under Florida Rule of Criminal Procedure 3.190(c)(4) must be sworn to by the defendant and contain specific factual allegations.
[2] A trial court errs in granting a motion to dismiss that fails to meet the procedural requirements of Florida Rule of Criminal Procedure 3.190(c)(4).
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Join FLexlaw to unlock all legal intelligence“A motion to dismiss an information on grounds that there are no material issues of fact and the undisputed facts which the state will present do not establish a prima facie case of guilt against the defendant must conform to Florida Rule of Criminal Procedure 3.190(c)(4) requiring that the facts be specifically alleged and the motion sworn to.”
Establishes the procedural requirements for motions to dismiss based on insufficient prima facie case
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Join FLexlaw to unlock all legal intelligenceAdderly was charged with aggravated assault and unlawful possession of a firearm while engaged in a criminal offense. The victim had died from unrelat…
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FERGUSON, Judge.
Adderly was charged by information with aggravated assault and unlawful possession of a firearm while engaged in a criminal offense. He moved to dismiss, by unsworn motion, on the grounds that the state would be unable to prove all the essential elements of the offenses because the victim had since died from unrelated causes. The sufficiency of the charging instrument is not challenged.
A motion to dismiss an information on grounds that there are no material issues of fact and the undisputed facts which the state will present do not establish a prima facie case of guilt against the defendant must conform to Florida Rule of Criminal Procedure 3.190(c)(4) requiring that the facts be specifically alleged and the motion sworn to. See State v. Davis, 243 So. 2d 587 (Fla.1971); State v. Brooks, 388 So. 2d 1291 (Fla.3d DCA 1980).
Having determined that Adderly’s motion could have been made only pursuant to Rule 3.190(c)(4), supra, we hold that the trial court erred in granting the motion to dismiss because, (1) the motion lacked specific factual allegations and (2) the motion was not sworn to by the defendant.1 State v. Aaron, 409 So. 2d 1214 (Fla.3d DCA 1982); State v. Holder, 400 So. 2d 162 (Fla.3d DCA 1981).
Adderly also moved to dismiss on grounds that three police officers failed to appear for deposition. We have repeatedly held that the state is not obliged, at pain of dismissal, to produce witnesses for deposition. State v. Mesa, 395 So. 2d 242 (Fla.3d DCA 1981); State ex rel. Gerstein v. Durant, 348 So. 2d 405 (Fla.3d DCA 1977); State v. Roig, 305 So. 2d 836 (Fla.3d DCA 1974).
Reversed and remanded for further proceedings.
. We assume that the defendant’s motion was based on a perceived inability of the state to prove that the victim was in fear of imminent violence — an essential element of assault. Though unnecessary to a disposition of this appeal, we note that fear of imminent violence may be inferred by the finder of fact from all the circumstances and all inferences on a motion to dismiss are to be resolved against the defendant. As a matter of law Adderly would not, on this record, have been entitled to a discharge even had the motion been procedurally correct. See, e.g., State v. Green, 400 So. 2d 1322 (Fla. 5th DCA 1981); McClain v. State, 383 So. 2d 1146 (Fla.4th DCA 1980), pet. for rev. denied, 392 So. 2d 1376 (Fla.1980); Gilbert v. State, 347 So. 2d 1087 (Fla.3d DCA 1977).
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Cited By (14 total)
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State v. Booker, 529 So. 2d 1239 (Fla. 1st DCA 1988)…bbery. The traverse/demurrer on the other hand reflects that the defendant aided a co-defendant in carrying out the robbery.1 When consider [*1240] ing a motion to dismiss, all inferences must be resolved against the defendant. See State v. Adderly, 411 So. 2d 981, 982 fn. 1 (Fla. 3d DCA 1982). In the instant case the key to whether the motion to dismiss should have been granted hinges on whether appellant participated in the crime with the co-defendant or was simply an innocent bystander. For appellant to be…
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State v. Valdes, 443 So. 2d 302 (Fla. 3d DCA 1983)…state’s failure to produce the witnesses. It is well established that it is not the responsibility of the prosecution to produce the state’s witnesses for depositions. Turiano v. Butterworth, 416 So. 2d 1261 (Fla. 4th DCA 1982); State v. Adderly, 411 So. 2d 981 (Fla. 3d DCA 1982); State v. Banks, 349 So. 2d 736 (Fla. 3d DCA 1977); State v. Roig, 305 So. 2d 836 (Fla. 3d DCA 1974). Furthermore, as this court stated in State ex rel. Gerstein v. Durant, 348 So. 2d 405, 408 (Fla. 3d DCA 1977): “[t]o order the s…
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State v. Alejander Perez, 543 So. 2d 386 (Fla. 3d DCA 1989)…produce witnesses for deposition because (a) it was not state’s responsibility to produce state witnesses for deposition, and (b) to dismiss for failure of state to do so constituted a departure from essential requirements of law); State v. Adderly, 411 So. 2d 981, 982 (Fla. 3d DCA 1982) (error to dismiss for police officer’s failure to appear for deposition as “state is not obliged, at pain of dismissal, to produce witnesses for deposition”). The order under review is therefore reversed, and the cause is r…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- State v. Davis, 243 So. 2d 587 (Fla. 1971)
- State v. Eutansio Antolin Roig, 305 So. 2d 836 (Fla. 3d DCA 1974)
- State of Fla. ex rel. Richard E. Gerstein v. The Honorable N. Joseph Durant, Jr., 348 So. 2d 405 (Fla. 3d DCA 1977)
- Rogers v. Marko, 383 So. 2d 1146 (Fla. 4th DCA 1980)
- Ulysses Ulice Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977)
- State v. Benny Lee Green, 400 So. 2d 1322 (Fla. 5th DCA 1981)
- State v. Mesa, 395 So. 2d 242 (Fla. 3d DCA 1981)
- State v. Brooks, 388 So. 2d 1291 (Fla. 3d DCA 1980)
- Dade Cnty. Pub. Health Tr. v. Fuentes, 400 So. 2d 162 (Fla. 3d DCA 1981)
- State v. Holder, 400 So. 2d 162 (Fla. 3d DCA 1981)