STATE OF FLORIDA, APPELLANT,
v.
RALPH E. MOORE, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The State appeals from an order dismissing a criminal prosecution for aggravated battery and weapons possession based on alleged prosecutorial delay. The court reverses, holding that the defendant's motion to dismiss was insufficiently specific and conclusory to require a state traverse, and that speculative allegations of witness loss and memory failure do not establish actual prejudice.
The court reversed, holding that the motion was speculative and conclusory rather than factual in nature and therefore did not require a state traverse or evidentiary hearing. The court also reaffirmed that general allegations of loss of witnesses and failure of memories are insufficient to establish the requisite actual prejudice needed to support a dismissal motion based on prosecutorial delay.
[1] A motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) must be sworn to with an unqualified attestation to its truth.
[2] A defendant's oath to a motion to dismiss must be unqualified, not merely true to the best of his knowledge and belief.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The facts on which such motion is based should be specifically alleged and the motion sworn to.”
Establishes the requirement under Florida Rule of Criminal Procedure 3.190(c)(4) that motions must be sworn and based on specific factual allegations.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAn information was filed on October 9, 1980, charging Moore with aggravated battery and possession of a weapon while engaged in a felony, with the all…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Prejudice From Delay cases and more on FLexlaw
GLICKSTEIN, Judge.
The state appeals from an order granting appellee’s “sworn” motion to dismiss. We' question whether the motion was “sworn to”, as that term is used in Florida Rule of Criminal Procedure 3.190(c)(4), which provides in part:
The facts on which such motion is based should be specifically alleged and the motion sworn to.
Appellee declared that the motion was “true and correct to the best of his knowledge and belief.” He should have been required to attest to its truth, unqualifiedly. See State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981). We see a distinction between a defendant’s oath and that of an assistant state attorney who can traverse only in good faith on the basis of the contents of his file, not what he knows of his own knowledge.
The basis for the order of dismissal was the state’s failure to traverse. We reverse and remand because Florida Rule of Criminal Procedure 3.190(d) requires a traverse of a sworn motion which alleges factual matters. The motion in this case was speculative and conclusory in nature, not factual. It required neither traverse nor evidentiary hearing.
The facts show that the information was filed on October 9, 1980, charging appellee with aggravated battery and possession of a weapon while engaged in a felony on October 27, 1979. Appellee’s motion asserted:
The failure of the State to place the Defendant under arrest prior to January 15, 1981 was entirely unjustifiable and the delay in commencing prosecution has prejudiced the Defense.
As a result of this unjustifiable delay, the Defense can not remember all of the facts and circumstances which will show that the Defendant was a victim, responding and acting entirely in his own self defense. As a further result, the result, [sic] the defense is unable to locate people who were present at the time of the incident and who could, with due diligence, have been found had prosecution been commenced and Defendant arrested at a time nearer to the time of the incident alleged.
There is no justification for the state to have waited so long after the incident in question to arrest the Defendant.
In State v. Newman, 367 So. 2d 251, 252 (Fla. 4th DCA 1979), this court said:
[Speculative allegations such as general allegations of loss of witnesses and failure of memories are insufficient to establish the requisite actual prejudice. United States v. Medina-Arellano, 569 F. 2d 349 (5th Cir.1978).
We subsequently disapproved conclusory allegations in Kassel v. State, 382 So. 2d 1354 (Fla. 4th DCA), pet. for rev. denied, 388 So. 2d 1114 (Fla.1980). We do it again here.
HERSEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Vicente Socarras and Alejandro Cabrera, 502 So. 2d 31 (Fla. 3d DCA 1987)…old him so. State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981); see State v. Fordham, 465 So. 2d 580, 581 (Fla. 5th DCA 1985) (oath of accused must be based upon his own knowledge of the facts and not “upon information and belief”); State v. Moore, 423 So. 2d 1010, 1011 (Fla. 4th DCA 1982) (opining, in dicta, that defendant’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…
-
Taylor v. State, 120 So. 3d 220 (Fla. 4th DCA 2013)…; see also State v. [*222] Hope, 89 So. 3d 1132, 1137 (Fla. 1st DCA 2012) (“ ‘Speculative or general allegations of prejudice, such as a disappearance of alibi witnesses or failure of memory are insufficient.’ ”) (citations omitted); State v. Moore, 423 So. 2d 1010, 1011 (Fla. 4th DCA 1982) (same). Further, this prejudice must constitute “a material impairment” to the preparation of the defendant’s case, and the defendant must provide an explanation of how the unavailable witnesses’ testimony “would have been…
Authorities Cited
- State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981)
- Rivers v. Phillips, 367 So. 2d 251 (Fla. 3d DCA 1979)
- United States v. Medina-Arellano, 569 F.2d 349 (5th Cir. 1978)
- Kassel v. State, 382 So. 2d 1354 (Fla. 4th DCA 1980)