STATE OF FLORIDA, APPELLANT,
v.
RAYMOND CATALDO, APPELLEE
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Florida's appellate court reversed the trial court's dismissal of a second-degree grand theft charge, holding that when the state files a sworn traverse denying material facts alleged in a motion to dismiss, the motion must be denied if sufficient facts exist for a jury to find guilt.
A motion to dismiss based on lack of intent must be denied when the state files a sworn traverse denying the material facts alleged in support of the motion and the record contains sufficient facts from which a jury could reasonably find the defendant committed the charged offense.
[1] When a defendant moves to dismiss for lack of intent and the state files a sworn traverse denying the material facts alleged in support of the motion, the motion must be…
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Join FLexlaw to unlock all legal intelligenceCataldo was charged with second-degree grand theft in violation of section 812.014, Florida Statutes. He moved to dismiss the information, contending …
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PER CURIAM.
The state appeals the trial court’s final order dismissing an information charging the appellee with second degree grand theft in violation of section 812.014, Florida Statutes (1983). In a motion to dismiss brought pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), the appellee essentially contended that the state would be unable to establish that he possessed the requisite intent for the charged offense. The state, however, filed a sworn traverse which specifically denied the facts which the appellee presented in support of this contention. See Fla.R.Crim.P. 3.190(d). Compare State v. Stenza, 453 So. 2d 169 (Fla. 2d DCA 1984) (motion to dismiss properly granted where state’s demurrer did not refute facts presented in support of motion to dismiss which established defendant lacked intent). Since the state’s traverse reveals that material facts are in dispute and the record contains sufficient facts from which a jury could reasonably find that the appellee committed the charged offense, we reverse the trial court’s order and remand for further proceedings. See State v. Alvarez, 403 So. 2d 1143 (Fla. 2d DCA 1981); State v. McCray, 387 So. 2d 559 (Fla. 2d DCA 1980).
REVERSED AND REMANDED.
SCHOONOVER, A.C.J., and PARKER and ALTERNBERND, JJ., concur.
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Citator
Cited By
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State v. Pickens, 565 So. 2d 913 (Fla. 3d DCA 1990)…the intent to commit an offense therein, the essential element to the greater offense, is a question of fact to be determined by a jury. See State v. Wise, 464 So. 2d 1245 (Fla. 1st DCA), rev. denied, 476 So. 2d 676 (Fla.1985) and State v. Cataldo, 539 So. 2d 16 (Fla. 2d DCA 1989). Reversed and remanded.…
Authorities Cited
- State v. McCRAY, 387 So. 2d 559 (Fla. 2d DCA 1980)
- CFM Distrib. & Iowa Nat'l Mut. Ins. Co. v. Alpert, 453 So. 2d 169 (Fla. 1st DCA 1984)
- State v. Stenza, 453 So. 2d 169 (Fla. 2d DCA 1984)
- State v. Odillio Alvarez, 403 So. 2d 1143 (Fla. 2d DCA 1981)