STATE OF FLORIDA, APPELLANT,
v.
BRUCE ALLEN BOOKER, APPELLEE
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Florida appealed the dismissal of robbery and theft charges against Bruce Booker. The trial court granted Booker's motion to dismiss, but the appellate court reversed, holding that the state adequately traversed the motion by alleging facts showing Booker aided and abetted the robbery, and that intent questions cannot be resolved on a motion to dismiss.
The court reversed the dismissal order, holding that the state adequately traversed the motion to dismiss by alleging facts showing the defendant aided and abetted the co-defendant in committing robbery. The court held that a defendant's intent to participate in the crime is not a question resolvable by motion to dismiss and must proceed to trial.
[1] A state waives an appellate argument that a defendant improperly attested a motion to dismiss if the state failed to raise that issue in the trial court.
[2] When considering a motion to dismiss, all inferences must be resolved against the defendant.
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Join FLexlaw to unlock all legal intelligence“When considering a motion to dismiss, all inferences must be resolved against the defendant.”
Establishes the standard of review for motions to dismiss—all inferences favor the defendant/appellee
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Join FLexlaw to unlock all legal intelligenceBruce Booker and co-defendant Thomas Booker approached a vehicle. Bruce asked the victims if they wanted to buy drugs, then moved aside to allow Thoma…
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ERVIN, Judge.
This is an appeal from a final order granting a motion to dismiss an information charging two counts of robbery and one count of petit theft. Concluding that the state adequately traversed the motion to dismiss, we reverse.
The state raises two issues on appeal, arguing first that the defendant improperly attested the motion to dismiss. We consider that the state has waived this error on appeal in that it failed to raise the issue below. See State v. Gomez, 508 So. 2d 784, 785 (Fla. 5th DCA 1987); Goodmakers v. State, 450 So. 2d 888 (Fla. 2d DCA 1984).
The state next argues that the trial court improperly granted the motion to dismiss, as the motion was adequately traversed.
We agree. The motion to dismiss alleges that the defendant in no way participated in the robbery. The traverse/demurrer on the other hand reflects that the defendant aided a co-defendant in carrying out the robbery.1 When consider ing a motion to dismiss, all inferences must be resolved against the defendant. See State v. Adderly, 411 So. 2d 981, 982 fn. 1 (Fla. 3d DCA 1982).
In the instant case the key to whether the motion to dismiss should have been granted hinges on whether appellant participated in the crime with the co-defendant or was simply an innocent bystander. For appellant to be convicted as an aider and abettor, he must not only have assisted the actual perpetrator, but he must also have intended to participate in the crime. See Horton v. State, 442 So. 2d 1064 (Fla. 1st DCA 1983).
The issue of a defendant’s intent is not resolvable by a motion to dismiss. See State v. Milton, 488 So. 2d 878 (Fla. 1st DCA), cert. denied, 479 U.S. 1012, 107 S.Ct. 659, 93 L.Ed.2d 713 (1986), quoting State v. Hricik, 445 So. 2d 1119, 1120 (Fla. 2d DCA 1984), stating that “[a] defendant’s intent is not an issue to be decided by the trial court on a Rule 3.190(c)(4) motion to dismiss.”
REVERSED and REMANDED for consistent proceedings.
«TOANOS and NIMMONS, JJ., concur. . The pertinent portion of the traverse/demurrer is as follows:
It is expected that State witness Bonnie McClelland would testify that defendant Bruce Booker approached the vehicle the victims were in on his own before any request for directions had been made. She would also testify that defendant Bruce Booker asked them if they wanted to buy some drugs, and she would also testify that Bruce Booker got out of the way and made room for co-defendant Thomas Booker to reach into the vehicle to snatch the purse in question. She would testify that it appeared that the robbery was planned and that both defendants had been conferring with each other just prior to the robbery.
Furthermore, she would testify that after Thomas Booker obtained the purse, he turned to his brother, Bruce Booker, and stated “I’ve got it. Come on man, let’s gol” Both defendants then walked away laughing.
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Velazquez v. State, 561 So. 2d 347 (Fla. 3d DCA 1990)…s might be a defective oath because [*349] the court reporter did not transcribe the exact wording of the oath. The state did not object to the oath when given to the defendant and, accordingly, has waived any objection thereto. See State v. Booker, 529 So. 2d 1239 (Fla. 1st DCA 1988); State v. Gomez, 508 So. 2d 784, 785 (Fla. 5th DCA 1987); Goodmakers v. State, 450 So. 2d 888, 890 (Fla. 2d DCA 1984). . The defendant states that the stop sign "was obscured by overgrown vegetation”; the state asserts that the…
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State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA 1992)…being a state of mind, can be inferred from the acts of the defendant and the surrounding circumstances. The issue of the existence of such an undisclosed mental intent cannot be disposed of in a rule 3.190(c)(4) motion. See, e.g., State v. Booker, 529 So. 2d 1239 (Fla. 1st DCA 1988). The trial court erred in dismissing counts I and II of the information. The appealed orders are reversed and the cause is remanded for further proceedings. BARFIELD and ALLEN, JJ., concur. KAHN, J., concurs with written opini…
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State v. Knight, 622 So. 2d 188 (Fla. 1st DCA 1993)…h operation resulted in the death of Cornelia Robinson. In this regard, it is critical to bear in mind that when considering a motion to dismiss, the court must resolve all inferences in favor of the state and against the defendant. State v. Booker, 529 So. 2d 1239 (Fla. 1st DCA 1988). In that respect, the facts contained in Officer Porter’s report are sufficient to establish a prima facie case of vehicular homicide. It is not pivotal to resolving the issue here that the report described the street in questio…
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
- Goodmakers v. State, 450 So. 2d 888 (Fla. 2d DCA 1984)
- State v. Zeb Adderly, 411 So. 2d 981 (Fla. 3d DCA 1982)
- Turner v. State, 442 So. 2d 1064 (Fla. 1st DCA 1983)
- State v. Milton, 488 So. 2d 878 (Fla. 1st DCA 1986)
- Carter v. United States, 479 U.S. 1012 (U.S. 1986)
- State v. Gomez, 508 So. 2d 784 (Fla. 5th DCA 1987)
- Milton v. Florida, 479 U.S. 1012 (U.S. 1986)
- State v. Hricik, 445 So. 2d 1119 (Fla. 2d DCA 1984)