STATE OF FLORIDA, APPELLANT,
v.
DEMETRIUS CYRUS GEORGALIS, APPELLEE
BERANEK, Judge.
An information was filed against appellee charging him with trafficking in cannabis and methaqualone. Appellee filed a sworn motion to dismiss averring he was acting as a confidential informant to the Federal Drug Enforcement Administration at all times and asserting that because of his agreement and cooperation with DEA he could not be found guilty of the crime charged. The State did not file a traverse, and the trial court dismissed the information.
We affirm. Florida Rule of Criminal Procedure 3.190(d) provides that factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in a traverse. The State having failed to file a traverse here, the trial court had no choice but to assume that the factual matters contained in appel-lee’s sworn motion to dismiss were in fact true. These undisputed facts constituted a valid defense to the crime charged and the trial court properly dismissed the information. Ritter v. State, 390 So. 2d 168 (Fla. 5th DCA 1980); Camp v. State, 293 So. 2d 114 (Fla. 4th DCA 1974).
AFFIRMED.
HERSEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Marrero v. State, 493 So. 2d 463 (Fla. 3d DCA 1985)…oses of applying an objective entrapment test, a motion for judgment of acquittal cannot substitute for a sworn motion to dismiss. A sworn motion to dismiss assumes the truth of all the facts which are not traversed by the state, State v. Georgalis, 421 So. 2d 676 (Fla. 4th DCA 1982), and does not require the court to invade the fact-finder’s province. Where material facts are controverted, the motion must be denied. State v. McQuay, 403 So. 2d 566 (Fla. 3d DCA 1981). On the other hand, a defendant moving for…
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State v. Sammons, 889 So. 2d 857 (Fla. 4th DCA 2004)…to defeat every motion to dismiss, they do provide that factual matters alleged in a rule 3.190(c)(4) motion “shall be considered admitted unless specifically denied by the state in the traverse.” [e.s.] Fla. R.Crim. P. 3.190(d); State v. Georgalis, 421 So. 2d 676, 676 (Fla. 4th DCA 1982) (when State failed to file Traverse, court must assume as true facts in motion to dismiss). Hence the State “must stand or fall on the bare denial that the undisputed facts [in the motion to dismiss] do not establish a prima…
Authorities Cited
- Camp v. State, 293 So. 2d 114 (Fla. 4th DCA 1974)
- Lawley v. State, 390 So. 2d 168 (Fla. 5th DCA 1980)