STATE OF FLORIDA, APPELLANT,
v.
ROBERT L. KAGAN, APPELLEE
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Florida reversed the trial court's dismissal of an information charging cocaine possession, holding that the defendant's sworn motion to dismiss was insufficient because it merely parroted deposition testimony rather than reciting facts within his personal knowledge, and that dismissal was an excessive sanction even if the motion had been sufficient.
A sworn motion to dismiss that merely parrots another's deposition testimony without reciting facts within the defendant's personal knowledge is insufficient to warrant dismissal, and dismissal is an excessive sanction even if such a motion were sufficient.
[1] A sworn motion to dismiss that merely parrots deposition testimony without reciting facts within the movant's personal knowledge is insufficient to support dismissal of c…
[2] Dismissal is an excessive sanction for prosecutorial delay in filing a traverse to a motion to dismiss absent a sworn and meritorious explanation for the delay.
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Join FLexlaw to unlock all legal intelligenceDefendant Kagan was charged with cocaine possession based on a vial found in his possession. Kagan filed a sworn motion to dismiss on October 29th tha…
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PER CURIAM.
We reverse the trial court’s dismissal of the information and remand. The sworn motion to dismiss, on its face, was insufficient to warrant dismissal, as it parroted what another said on deposition, and was not an unqualified recitation of facts within the defendant’s personal knowledge serving to dispel the issue of his knowing there was cocaine in the vial found in his possession.
Moreover, the sanction of dismissal was too draconian even if the sworn motion had been sufficient. The motion was filed on October 29th, and the state’s motion to strike and/or traverse, on November 23rd. The hearing was held the next day. While it is incumbent upon the state to file its traverse a reasonable time before the hearing as required by Florida Rule of Criminal Procedure 3.190(d), and there was an un-sworn attempt to explain the delay, the defendant could have been given time to rebut whatever the state offered — not only the state’s above pleading, but also the amended version tendered at the commencement of the hearing. Whether the decision on this point would be different had the sworn motion been sufficient presents a possibly fatal risk to prosecutors who file required pleadings belatedly without giving sworn, meritorious explanations.
DOWNEY, GLICKSTEIN and DELL, JJ., concur.