THE STATE OF FLORIDA, APPELLANT,
v.
CARLOS RODRIGUEZ, APPELLEE
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The State of Florida appeals from an order granting the defendant's sworn motion to dismiss under Florida Criminal Procedure Rule 3.190(c)(4). The court upholds the motion to dismiss, rejecting the state's arguments that the jurat was procedurally defective and that the motion should have been denied due to an untimely traverse.
The motion to dismiss was properly sworn and therefore procedurally valid. The jurat, which rested on the defendant's own knowledge of the facts, complied with Florida Criminal Procedure Rule 3.190(c)(4). Additionally, the state's traverse was untimely filed and therefore could not serve as a basis for denial of the motion.
[1] A sworn motion to dismiss under Fla.R.Crim.P. …
[2] A jurat stating that the facts in a motion are true and correct to the best of the defendant's knowledge is sufficient to satisfy the swearing requirement of Fla.R.Crim.P. …
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Join FLexlaw to unlock all legal intelligence“the jurat clearly rested upon the defendant's own knowledge of the facts recited in the motion, therefore the motion was properly sworn, to in accordance with Fla.R.Crim.P. 3.190(c)(4)”
Establishes the standard for a properly sworn motion—that it must rest on the defendant's own knowledge of the facts
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Join FLexlaw to unlock all legal intelligenceThe defendant Carlos Rodriguez filed a sworn motion to dismiss containing a jurat in which Rodriguez swore that the facts in the motion were "true and…
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PER CURIAM.
The state appeals from a non-final order granting the defendant’s sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) and denying the state’s motion to strike the defendant’s motion. It is the state’s contention that the motion to dismiss should have been stricken as procedurally defective because the jurat contained in the motion1 failed to expose the defendant to the penalties of perjury. We cannot agree. Nor are we persuaded by the state’s reliance upon State v. Socarras, 502 So. 2d 31 (Fla. 3d DCA 1987). Socarras is distinguishable from. the case at bar since the defendant’s oath which was found to be defective in Socarras stated that the facts alleged in the motion were “true and correct to the best of his knowledge, information and belief.” (Emphasis in original.) In the instant case, however, the jurat clearly rested upon the defendant’s own knowledge of the facts recited in the motion, therefore the motion was properly sworn, to in accordance with Fla.R.Crim.P. 3.190(c)(4). See Socarras, 502 So. 2d at 32, and cases cited.
We also reject the state’s fail-back argument that the motion should have been denied because the state had filed a traverse. The record reflects that the traverse was not timely filed in accordance with the rule “a reasonable time before the hearing on the motion to dismiss,” Fla.R. Crim.P. 3.190(d), but rather, was filed with the court after the commencement of the hearing on the motion to dismiss.
Affirmed.
. The jurat or oath signed by Rodriguez stated that he swore "that the facts contained in the foregoing Motion to Dismiss are true and correct to the best of his knowledge." (Emphasis supplied.)
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Cited By
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State v. Rodriguez, 523 So. 2d 1141 (Fla. 1988)…section 3(b)(3) of the Florida Constitution, we accepted jurisdiction of this cause to resolve a conflict between our decision in Scott v. State, 464 So. 2d 1171 (Fla.1985), and that of the Third District Court of Appeal below in State v. Rodriguez, 505 So. 2d 628 (Fla. 3d DCA 1987). The facts are simple. Respondent was charged by information with burglary of a conveyance and theft. He filed, through his attorney, a pleading captioned “Sworn Motion to Dismiss,” under Rule 3.190(c)(4), Florida Rules of Crimin…
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State v. Purvis, 560 So. 2d 1296 (Fla. 5th DCA 1990)…addressed. Rule 3.190(d), Florida Rules of Criminal Procedure, requires that a traverse be filed a reasonable time before the hearing on the’ motion to dismiss. A traverse filed after the commencement of the hearing is untimely. State v. Rodriguez, 505 So. 2d 628 (Fla. 3d DCA 1987), reversed on other grounds, 523 So. 2d 1141 (Fla.1988). In defense of its late filing, the State alleges that the hearing on the motions was scheduled for December 16,1988, but that the C-4 motions were not mailed to the State unt…
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State v. Juleo Lopez, 526 So. 2d 1008 (Fla. 4th DCA 1988)…of a final order. Thus the court had the power to rethink its original position and grant the motion. Appellee’s next argument, that the order is supportable on the basis that the state’s traverse was not timely filed, relies on State v. Rodriguez, 505 So. 2d 628 (Fla. 3d DCA 1987), quashed on other grounds, 523 So. 2d 1141 (Fla.1988). The state understandably takes a contrary position and maintains that the traverse should have been considered as standing over as a traverse to the renewed motion. We think t…
Authorities Cited
- State v. Vicente Socarras and Alejandro Cabrera, 502 So. 2d 31 (Fla. 3d DCA 1987)