THE STATE OF FLORIDA, APPELLANT,
v.
STEVE SAWYER, APPELLEE
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PER CURIAM.
Where a defendant’s sworn motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is met with a traverse by the State which specifically denies under oath the material facts alleged, the motion to dismiss must automatically be denied. Fla.R.Crim.P. 3.190(d); State v. J.T.S., 373 So. 2d 418 (Fla.2d DCA 1979), disapproved on other grounds, D.K.D. v. State, 470 So. 2d 1387 (Fla.1985). Even if the traverse was not filed at a “reasonable time before the hearing on the motion to dismiss,” Fla.R.Crim.P. 3.190(d), dismissal is too harsh a sanction under the factual circumstances. See State v. Ryan, 513 So. 2d 753 (Fla. 4th DCA 1987); State v. Burnison, 438 So. 2d 538 (Fla.2d DCA 1983).
We need not decide whether the sworn motion to dismiss is sufficient under State v. Rodriquez, 523 So. 2d 1141 (Fla.1988) (jurat in which defendant swears to his statements being to the “best of his knowledge” not sufficient for motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4)).
Reversed and remanded for further proceedings.
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Afghari Boler v. State, 678 So. 2d 319 (Fla. 1996)…5). Moreover, where a defendant’s sworn motion to dismiss is met with a traverse by the state which specifically denies under oath material facts alleged, the motion to dismiss must automatically be denied. Fla. R.Crim. P. 3.190(d); State v. Sawyer, 526 So. 2d 191 (Fla. 3d DCA 1988). Thus, we find that the trial court properly denied Oats’ motion to dismiss. [*324] For the reasons expressed above, we answer the issue framed by the district court in the affirmative;9 affirm the trial court’s judgment in Oats’…
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State v. Harrell, 588 So. 2d 54 (Fla. 3d DCA 1991)…the firearm was protruding so far out of the unzipped bag, that any individual standing beside the automobile, by ordinary observation, would know the object was a firearm. Thus, ap-pellee argues, the firearm was not concealed. In State v. Sawyer, 526 So. 2d 191 (Fla. 3d DCA 1988) this court held: Where a defendant’s sworn motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is met with a traverse by the State which specifically denies under oath the material facts alleged, the moti…
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State v. Kerby Presume, 710 So. 2d 604 (Fla. 4th DCA 1998)…n motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is met with a traverse by the State which specifically denies under oath the material facts alleged, the motion to dismiss must automatically be denied.” State v. Sawyer, 526 So. 2d 191, 191-92 (Fla. 3d DCA 1988) (emphasis added) (citing Fla. R.Crim.P. 3.190(d)); accord State v. Rosenberg, 648 So. 2d 1253 (Fla. 3d DCA 1995); State v. Weinstein, 623 So. 2d 835 (Fla. 4th DCA 1993); Whatley v. State, 584 So. 2d 219 (Fla. 4th DCA 1991)…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. J. T. S. and G. R. W., 373 So. 2d 418 (Fla. 2d DCA 1979)
- State v. Rodriguez, 523 So. 2d 1141 (Fla. 1988)
- D.K.D. v. State, 470 So. 2d 1387 (Fla. 1985)
- State v. Burnison, 438 So. 2d 538 (Fla. 2d DCA 1983)
- State v. Ryan, 513 So. 2d 753 (Fla. 4th DCA 1987)