STATE OF FLORIDA, APPELLANT,
v.
LOUIS SAN MARTIN, APPELLEE
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Florida appeals the dismissal of a robbery charge against Louis San Martin. The court reversed the dismissal, holding that when the state files a traverse specifically denying material facts in a motion to dismiss, the trial court must deny the motion without hearing testimony.
When the state files a traverse specifically denying material facts alleged in a motion to dismiss, the court has no alternative but to deny the motion without taking testimony. The motion to dismiss must be denied because the state's traverse denied the central element that the cashiers lacked a sufficient possessory interest in the money.
[1] A motion to dismiss an information under Florida Rule of Criminal Procedure 3.190(c)(4) must be denied when the state files a traverse specifically denying material facts…
[2] When the state files a traverse denying material facts alleged in a motion to dismiss, the court should deny the motion without taking testimony.
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Join FLexlaw to unlock all legal intelligence“We hold that when the state filed a traverse specifically denying material facts alleged in the motion, the court had no alternative but to deny the motion without the taking of testimony.”
States the controlling legal rule that when material facts are denied in a traverse, a motion to dismiss must be denied without hearing testimony.
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Join FLexlaw to unlock all legal intelligenceSan Martin was charged with robbery for taking money from the person or custody of two cashiers at Cook's Department Store. San Martin and the retail …
The full statement of facts, procedural history, and disposition for this case are member content.
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RYDER, Judge.
The state appeals dismissal of its information against Louis San Martin. We reverse.
The state charged appellee with robbery, alleging that he took money from the person or custody of Patricia Switzer and Mary Ellen Allen. Appellee filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4).
The motion alleged that the state’s prime witness was John M. Colbert, retail manager of Cook’s Department Store, where the robbery took place. Appellee and Colbert planned the alleged robbery, and appellee hid in the store after closing. Appellee then emerged at the office, confronted Colbert and the two cashiers named in the information, tied up the cashiers in another room, and took the money from the safe. The motion alleged that the cashiers had no custody or control over the money in the safe which belonged to Cook’s. The motion concluded that while appellee may have conspired in the commission of grand theft, he did not commit robbery or use any force to take money from the possession of the cashiers.
The state traversed, admitting that the alleged robbery was planned with Colbert, but denied that the cashiers did not have custody or control over the money. The state alleged that appellee took the money from the custody of the cashiers by threats or force. The traverse responded individually to each paragraph in the motion, either admitting or denying the facts contained therein. When the traverse did deny a fact, an explanatory sentence was added. After hearing on the motion, including the testimony of the two cashiers, the lower court granted the motion to dismiss.
We hold that when the state filed a traverse specifically denying material facts alleged in the motion, the court had no alternative but to deny the motion without the taking of testimony. Fla.R.Crim.P. 3.190(d).
See State v. Alvarez, 403 So. 2d 1143 (Fla.2d DCA 1981); State v. J.T.S., 373 So. 2d 418 (Fla.2d DCA 1979); State v. Huggins, 368 So. 2d 119 (Fla.1st DCA 1979).
The central element of appellee’s motion below was that the cashiers did not have a sufficient possessory interest in the money to be robbed of it. The state’s traverse denied that the cashiers lacked custody or control over the money. A material fact was thus denied, and the motion must be denied. We note in passing that the motion to dismiss was not sworn to by appellee, who, later, did swear to an affidavit stating that the facts in the motion were accurate to the best of his knowledge. We do not reach the issue of adequacy of the motion, since the issue may not have been preserved for appeal, but note that such a motion to dismiss must be sworn to by one having direct knowledge of the facts asserted. The motion below does not appear to meet this basic requirement. See State v. Bethea, 409 So. 2d 1139 (Fla.2d DCA 1982).
The order granting dismissal below is REVERSED, and the case REMANDED for further proceedings.
HOBSON, A.C.J., and DANAHY, J., concur.
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State v. Smith, 575 So. 2d 314 (Fla. 2d DCA 1991)…al court was not authorized to resolve this issue pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). In order to invoke that summary procedure, the defendants were required to swear to the factual contents of their motions. State v. Martin, 422 So. 2d 12 (Fla. 2d DCA 1982). The state did not waive this requirement. The defendants argue that their motions were not filed pursuant to rule 3.190(c)(4) and that they lack the ability to swear to information contained in discovery depositions obtained fro…
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State v. Vicente Socarras and Alejandro Cabrera, 502 So. 2d 31 (Fla. 3d DCA 1987)…s declaration the motion was “true and correct to the best of his knowledge and belief” did not meet the rule’s requirement of a sworn motion and the defendant should have been required to attest to its truth, unqualifiedly) (e.s.); State v. Martin, 422 So. 2d 12 (Fla. 2d DCA 1982) (noting that motion must be sworn to by one having direct knowledge of the facts asserted therein). Accordingly, we reverse the order of dismissal as to the charges against defendant Cabrera, and remand the cause for further proce…
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State v. Hayes, 453 So. 2d 940 (Fla. 4th DCA 1984)…cifically denied the matters alleged in the motion. Appellee’s motion to dismiss was insufficient because a motion to dismiss sworn to by counsel upon information and belief, [*941] rather than upon actual knowledge, is defective. State v. Martin, 422 So. 2d 12 (Fla.2d DCA 1982); State v. Upton, 392 So. 2d 1013 (Fla.5th DCA 1981). In addition, the traverse filed by the state contains sufficient specificity to controvert the motion to dismiss and demonstrate issues to be tried. Accordingly, the order gran…
Authorities Cited
- State v. J. T. S. and G. R. W., 373 So. 2d 418 (Fla. 2d DCA 1979)
- State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979)
- State v. Bethea, 409 So. 2d 1139 (Fla. 2d DCA 1982)
- State v. Odillio Alvarez, 403 So. 2d 1143 (Fla. 2d DCA 1981)