STATE OF FLORIDA, APPELLANT,
v.
ERNEST RICHARD YARBOROUGH, APPELLEE
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Florida appeals the dismissal of two felony cases against Yarborough for burglary and theft. The court holds that while a prosecutor's oral traverse without written notice may constitute error, the trial court properly dismissed charges where the state's written traverse lacked good faith, and remands the first case for reconsideration.
The dismissal in case 88-02716 was error to the extent it was based solely on the failure to submit a written traverse; a written traverse is required but the prosecution's lack of prior notice may be relevant to whether dismissal was proper. The dismissal in case 88-02889 was properly affirmed because a traverse must be made in good faith, and the trial court's finding that the state's traverse lacked good faith was not clearly erroneous.
[1] A trial court errs in dismissing felony charges solely based on the prosecution's failure to submit a written traverse when an oral traverse was presented.
[2] A trial court may dismiss a motion to dismiss a criminal charge if the prosecution's written traverse is not filed in good faith.
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“Dismissal of the charges in 88-02716, to the extent the trial court's ruling appears to be based solely on the failure to submit a written traverse, was error.”
Establishes that a prosecutor's failure to file a written traverse is not alone sufficient grounds for dismissal, distinguishing the first case.
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Join FLexlaw to unlock all legal intelligenceYarborough was charged in two separate cases with burglary and petit theft. In case 88-02716, Yarborough moved to dismiss based on the principal witne…
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PER CURIAM.
The state appeals two separate orders dismissing felony charges against appellee Ernest Yarborough. The cases have been consolidated for purposes of appeal.
In case number 88-02716 (circuit court case number 87-446) Yarborough was charged with burglary of a boat and petit theft. He moved to dismiss the charges pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), claiming that the state’s principal witness was unable to identify him as the perpetrator of the offense. At the hearing on Yarborough’s motion the prosecutor orally traversed specific paragraphs of the motion and indicated that he knew of “additional evidence” sufficient to warrant bringing the case to trial. When the court inquired why no written, sworn traverse had been submitted the prosecutor indicated he had not been served with Yar-borough’s motion until the day of the hearing. The court granted the motion to dismiss.
In case number 88-02889 (circuit court case number 87-424) Yarborough was charged with burglary of a dwelling and petit theft. His motion to dismiss was predicated on grounds similar to those in the foregoing case, i.e., an alleged inability to identify Yarborough. This time the state filed its traverse in writing. However, after hearing argument the court determined that this traverse to count I of the information was not filed in good faith, and dismissed that count.
Dismissal of the charges in 88-02716, to the extent the trial court’s ruling appears to be based solely on the failure to submit a written traverse, was error. State v. Higgins, 437 So. 2d 180 (Fla. 4th DCA 1983); State v. Cramer, 383 So. 2d 254 (Fla. 2d DCA 1980). As to case number 88-02889, the state argues that denial of a (c)(4) motion is mandatory whenever a written traverse has been filed. See generally, State v. Lewis, 463 So. 2d 561 (Fla. 2d DCA 1985). However, the trial court was correct in its belief that a traverse must be made in good faith. State v. Holliday, 431 So. 2d 309 (Fla. 1st DCA 1983). We are not persuaded that the court's finding was error. The order of dismissal is therefore affirmed.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this ’ opinion.
SCHEB, A.C.J., and CAMPBELL and PATTERSON, JJ„ concur.
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State v. Ferris Michele Paleveda, 745 So. 2d 1026 (Fla. 2d DCA 1999)…der the facts alleged in the motion to dismiss to determine whether a prima facie case has been established. See State v. Armstrong, 616 So. 2d 510 (Fla. 4th DCA 1993); State v. Gale, 575 So. 2d 760 (Fla. 4th DCA 1991); see also State v. Yarborough, 571 So. 2d 17 (Fla. 2d DCA 1990); State v. Higgins, 437 So. 2d 180 (Fla. 4th DCA 1983); State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981). If the facts alleged in the motion establish a pri-ma facie case, the motion to dismiss must be denied. See State v. Blanc…
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State v. Darcey Pizzagalli, 581 So. 2d 650 (Fla. 4th DCA 1991)…particularly where no notice of hearing was given. See State v. Ryan, 513 So. 2d 753 (Fla. 4th DCA 1987); State v. Burnison, 438 So. 2d 538 (Fla. 2d DCA 1983). Accord State v. Sawyer, 526 So. 2d 191 (Fla. 3d DCA 1988). See also State v. Yarborough, 571 So. 2d 17 (Fla. 2d DCA 1990); State v. Higgins, 437 So. 2d 180 (Fla. 4th DCA), rev. dismissed, 450 So. 2d 486 (Fla.1984). We reverse and remand with directions to permit the state to file a traverse with hearing on the motion to dismiss to follow and thereaf…
Authorities Cited
- State v. Clemon Lewis, 463 So. 2d 561 (Fla. 2d DCA 1985)
- State v. Thaddeus Tyrone Holliday, 431 So. 2d 309 (Fla. 1st DCA 1983)
- State v. Cramer, 383 So. 2d 254 (Fla. 2d DCA 1980)
- Ambassador Ins. Co. v. Highlands Gen. Hosp., 383 So. 2d 254 (Fla. 2d DCA 1980)
- State v. Higgins, 437 So. 2d 180 (Fla. 4th DCA 1983)