STATE OF FLORIDA, APPELLANT,
v.
DALPATHBHAI N. PATEL, APPELLEE
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This opinion is a dissent arguing that the trial court should have granted the defendant's motion to dismiss the charge of criminal manslaughter, but not the charge of vehicular homicide.
The dissenting judge believed the trial court should have granted the motion to dismiss the criminal manslaughter charge because the state did not establish conscious reckless conduct, but should have denied the motion as to vehicular homicide, which requires only proof of reckless conduct.
The defendant passed a school bus with its caution lights and stop sign displayed on a two-lane highway. A semi-truck obscured the defendant's view of…
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DAUKSCH, Judge.
This is an appeal from an order under Rule 3.190(c)(4) Florida Rules of Criminal Procedure, dismissing a criminal charge of manslaughter. The state alleges appellee drove his car in a culpably negligent fashion and caused the death of a child who had crossed the roadway after having been dropped off by a school bus.
An order dismissing an information pursuant to a (c)(4) motion is similar to a summary judgment in a civil case. It should be granted sparingly and only when no factual basis exists which could establish a prima facie case of guilt. It is not a substitute for a directed judgment of acquittal at trial nor is it a test of the weight to be given to witness testimony or other evidence. Here there was evidence in the form of deposition testimony and the sworn motion and traverse1 which indicates appellee was travelling a busy highway, S.R. 50, behind a truck which was behind a school bus; that the bus stopped, flashed its caution lights and displayed its stop sign; that appellee could or did see the bus, passed it notwithstanding the stop indicator, and struck the child. There are other facts in the record regarding distances, speeds and times which all should go to a trier of fact to determine whether appellee is guilty of the crime charged, or some lesser included offense, but all the facts in the record do require a trial. See State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981).
REVERSED and REMANDED.
COBB, C.J., concurs.
SHARP, J., concurs in part, dissents in part with opinion.
. We note the motion was not sworn to by the defendant, but the state did not object to this defect. See State v. Mayle, 406 So. 2d 108 (Fla. 5th DCA 1981).
SHARP, Judge,
concurs in part; dissents in part.
Degrees of culpability are difficult to measure with uniformity and accuracy, and the measure will necessarily vary from case to case with the size of the trial judge’s yard stick, or that of the reviewing appellate panel’s majority. However, making such a measure is the duty and function of the court, whether it is in the context of a directed verdict, or in ruling on a (c)(4) motion.1 See State v. Pastorius, 419 So. 2d 1137 (Fla. 4th DCA 1982).
I agree with the majority that only a prima facie case need be shown by the state in the context of a (c)(4) motion. State v. Horne, 399 So. 2d 49 (Fla. 3d DCA 1981). However, viewing the record in this case in the most damaging light to Patel, I do not think it prima facie establishes conscious reckless conduct on his part sufficient to constitute “culpable negligence” as required by the criminal manslaughter statute. § 782.07, Fla.Stat. (1981).
Our supreme court has indicated such conduct must be so wanton as to be tantamount to willful conduct. See Cannon v. State, 91 Fla. 214, 107 So. 360 (Fla.1926). Where only one or two factors were proven, such as speeding or being on the wrong side of the road, the courts have held that culpable negligence was not proven.2
In this case the only factor established for purposes of the (c)(4) motion was that Patel passed a school bus on a two lane highway that had its caution lights on and its stop sign displayed. Patel was following a semi-truck that passed the school bus before the stop sign came on. The truck obscured the vision of Patel’s station wagon by the bus driver, who did not see Patel until after she had opened the door and the child jumped out. The child was hit three seconds later. The state did not show that Patel saw the child victim exit the bus and run in front of it. Patel saw the child only microseconds before impact with his car. Prior to the accident Patel had not been speeding, and he was not intoxicated. In my view the (c)(4) motion should have been granted as to the charge of criminal manslaughter, but denied as to the lesser included offense of vehicular homicide. § 782.071, Fla.Stat. (1981). Vehicular homicide only requires proof of reckless conduct in the operation of a motor vehicle. McCreary v. State, 371 So. 2d 1024 (Fla.1979); State v. Sheppard, 401 So. 2d 944 (Fla. 5th DCA 1981). That, at the most, was all the record established in my view.
. Fla.R.Crim.P. 3.190(c)(4).
. See Smith v. State, 65 So. 2d 303 (Fla.1953); Graives v. State, 127 Fla. 182, 172 So. 716 (1936); Scarborough v. State, 188 So. 2d 877 (Fla. 2d DCA 1966); Jackson v. State, 100 So. 2d 839 (Fla. 1st DCA 1958). Compare Filmon v. State, 336 So. 2d 586 (Fla.1976); Tegethoff v. State, 220 So. 2d 399 (Fla. 4th DCA 1969). But see Franklin v. State, 120 Fla. 686, 163 So. 55 (Fla.1935).
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State v. Fuller, 463 So. 2d 1252 (Fla. 5th DCA 1985)…State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981). All inferences that arise must be taken in the light most favorable to the state. A (c)(4) motion is similar to a summary judgment in a civil case and should be granted sparingly. State v. Patel, 453 So. 2d 218 (Fla. 5th DCA 1984); State v. Raulerson, 403 So. 2d 1102 (Fla. 5th DCA 1981); Upton. In considering such a motion the trial court should not determine fact issues or consider the weight of conflicting evidence or the credibility of witnesses. State…
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State v. Lebron, 954 So. 2d 52 (Fla. 5th DCA 2007)…In order to survive this motion, the State, given the benefit of a view of the evidence and inferences most favorable to it, is required to make out only a prima facie case. See Brinkley v. State, 874 So. 2d 1199 (Fla. 5th DCA 2004); State v. Patel, 453 So. 2d 218 (Fla. 5th DCA 1984). It does not have to show guilt beyond a reasonable doubt, nor produce evidence sufficient to sustain a conviction. See State v. Bonebright, 742 So. 2d 290 (Fla. 1st DCA 1998). Given this rather low bar, we conclude that the tri…
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State v. Fordham, 465 So. 2d 580 (Fla. 5th DCA 1985)…Fla. 5th DCA 1980); State v. Fort, 380 So. 2d 534 (Fla. 5th DCA 1980). All questions and inferences from the facts are resolved in favor of the state, like the non-moving party in a civil summary judgment proceeding. State v. Fuller; State v. Patel, 453 So. 2d 218 (Fla. 5th DCA 1984); State v. Raulerson, 403 So. 2d 1102 (Fla. 5th DCA 1981); State v. Green, 400 So. 2d 1322 (Fla. 5th DCA 1981). Here the motion was not sworn to and the affidavit which appellee signed saying “To the best of my knowledge, based u…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Cannon v. State, 107 So. 360 (Fla. 1926)
- State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981)
- McCREARY v. State, 371 So. 2d 1024 (Fla. 1979)
- Filmon v. State, 336 So. 2d 586 (Fla. 1976)
- Smith v. State, 65 So. 2d 303 (Fla. 1953)
- Earnest Leon Jackson v. State, 100 So. 2d 839 (Fla. 1st DCA 1958)
- Graives v. State, 127 Fla. 182 (Fla. 1936)
- Franklin v. State, 120 Fla. 686 (Fla. 1935)
- Buford T. Scarborough v. State, 188 So. 2d 877 (Fla. 2d DCA 1966)
- State v. Horne, 399 So. 2d 49 (Fla. 3d DCA 1981)