THE STATE OF FLORIDA, APPELLANT,
v.
THOMAS HAROLD ZIPFEL, APPELLEE
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The State appealed a trial court's grant of a defendant's motion to dismiss based on an improper oath accompanying the state's traverse. The Florida appellate court affirmed the dismissal, holding that the state attorney's oath did not comply with the personal knowledge requirement established in State v. Rodriguez and that future traverses should be executed using language similar to that required for initial information filings.
The oath in this case was inappropriate under State v. Rodriguez. The court affirmed the trial court's order of dismissal, holding that it would be effectively impossible for a state attorney to make an oath to a traverse based on personal knowledge. Future oaths on traverses should be couched in language similar to that required by Rule 3.140(g) for execution of an information.
[1] An oath in a state's sworn traverse is inappropriate if it is based on the affiant's knowledge and belief rather than personal knowledge, when the defendant's sworn motio…
[2] It is generally impossible for a state attorney or assistant to make an oath to a traverse based on personal knowledge.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the oath in the instant case was an inappropriate oath pursuant to State v. Rodriguez, supra, and note that it would be impossible for a state attorney or assistant thereto, in all probability, to make an oath to a traverse upon personal knowledge.”
Establishes that the personal knowledge requirement, while applicable to defendant's motions, cannot be applied to state traverses as a practical matter
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Join FLexlaw to unlock all legal intelligenceThe State filed a traverse in response to Zipfel's sworn motion to dismiss. The traverse was accompanied by an oath sworn by Assistant State Attorney …
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PER CURIAM.
The state appeals a final order granting Zipfel’s sworn motion to dismiss which also certifies an issue of great public importance. The certified question is:
Whether the jurat in the state’s sworn traverse must be based on personal knowledge, as required of defendant’s sworn motion to dismiss, pursuant to State v. Rodriguez, 523 So. 2d 1141 (Fla.1988).
We hold that the oath in the instant case1 was an inappropriate oath pursuant to State v. Rodriguez, supra, and note that it would be impossible for a state attorney or assistant thereto, in all probability, to make an oath to a traverse upon personal knowledge. Compare Gorham v. State, 494 So. 2d 211 (Fla.1986). We believe it would be appropriate for such an oath to be couched in such language as that required by the rule for the execution of an information in the first instance. See Rule 3.140(g), Florida Rules of Criminal Procedure.2
Therefore we indicate that the trial court correctly answered the certified question, although it may have been for the wrong reason. See and compare Combs v. State, 436 So. 2d 93 (Fla.1983); Patterson v. State, 462 So. 2d 33 (Fla. 1st DCA 1985); Zirkle v. State, 410 So. 2d 948 (Fla. 3d DCA 1982); Robinson v. State, 393 So. 2d 33 (Fla. 1st DCA 1981).
Accordingly, the order of dismissal appealed herein is hereby affirmed.
AFFIRMED.
BARKDULL, J., and ORFINGER, Associate Judge, concur. . The oath reads as follows:
"BEFORE ME, the undersigned authority, duly authorized to administer oaths and take acknowledgements, personally appeared SCOTT KOTLER, who, being by me first duly sworn, deposes and says that he is a duly appointed Assistant State Attorney of the Eleventh Judicial Circuit of Florida and that, as such, he is authorized to execute and has executed the above Traverse; and that he has read the allegations therein contained and the same are true and correct to the best of his knowledge and belief. Further affiant saith not."
. Rule 3.140(g), Florida Rules of Criminal Procedure reads as follows:
“(g) Signature, Oath, and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.”
DANIEL PEARSON, Judge,
concurring.
The majority opinion is internally inconsistent. I agree with the majority that it would be as impossible for a state attorney to make an oath to a traverse upon personal knowledge as it would be to make such an oath to an information. But if that is the case, then I obviously cannot agree with the majority when it says that the trial court correctly answered the certified question, namely, whether the oath to a sworn traverse must be based on personal knowledge. But notwithstanding that the county court incorrectly answered the certified question, it correctly dismissed the information because the oath to the traverse was, as the majority points out, otherwise inadequate. I therefore concur in the result of dismissing the action.
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State v. Gutierrez, 649 So. 2d 926 (Fla. 3d DCA 1995)…denies under oath the material fact or facts alleged in the motion to dismiss. Fla.R. Crim.P. 3.190(d) (emphasis added). The State’s unsworn traverse was insufficient to require an automatic denial of defendant’s motion to dismiss. State v. Zipfel, 537 So. 2d 1099, 1100 (Fla. 3d DCA 1989) (Pearson, J. concurring) (“[The trial court] correctly dismissed the information because the oath to the traverse was, as the majority points out, otherwise inadequate.”). This finding, however, is not disposi-tive of the m…
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State v. Terma, 997 So. 2d 1174 (Fla. 3d DCA 2008)…t, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss. The demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss. . As this Court concluded in State v. Zipfel, 537 So. 2d 1099 (Fla. 3d DCA 1989), if the State’s traverse is couched in the same language as the oath required for execution of an information pursuant to Florida Rule of Criminal Procedure 3.140(g), the traverse is adequate. Here, the traverse filed by the State…
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State v. Armstrong, 616 So. 2d 510 (Fla. 4th DCA 1993)…ply states that he has read the allegations therein contained and “the same are true and correct to the best of his knowledge and belief.” Such a jurat has been held inadequate to meet the requirements of rule 3.190(c)(4) pleadings. State v. Zipfel, 537 So. 2d 1099 (Fla. 3d DCA 1989). Nevertheless, when a traverse is procedurally inadequate the trial court still must examine the motion to dismiss to determine whether said motion demonstrates that the undisputed facts fail to establish a prima facie case of gui…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Combs v. State, 436 So. 2d 93 (Fla. 1983)
- Gorham v. State, 494 So. 2d 211 (Fla. 1986)
- Robinson v. State, 393 So. 2d 33 (Fla. 1st DCA 1981)
- State v. Rodriguez, 523 So. 2d 1141 (Fla. 1988)
- Zirkle v. State, 410 So. 2d 948 (Fla. 3d DCA 1982)
- Patterson v. State, 462 So. 2d 33 (Fla. 1st DCA 1984)