STATE OF FLORIDA, APPELLANT,
v.
DARCEY PIZZAGALLI, APPELLEE
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The appellate court reversed a trial court's dismissal of a criminal case, finding that the dismissal was an excessive sanction for the state's failure to timely traverse a motion to dismiss, especially since the state was not given notice of a hearing.
No, the dismissal was an error and too harsh a sanction because the state was not given notice of the hearing, which is implicitly required to file a traverse a reasonable time before it.
[1] A trial court errs in granting a motion to dismiss for the state's failure to timely file a traverse when the state has not received notice of the hearing on the motion.
[2] Dismissal of a criminal charge is too harsh a sanction for the state's failure to file a traverse when the defendant suffers no prejudice and no notice of hearing was giv…
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Join FLexlaw to unlock all legal intelligence“Implicit in this language is the necessity that the state receive notice of the date and time of hearing in order to file its traverse “a reasonable time before” such date and time.”
Explains the court's reasoning that notice of hearing is a prerequisite for the state to file a timely traverse.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe state appealed an order granting the defendant's sworn motion to dismiss a marijuana delivery charge. The defendant filed the motion but did not n…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The state appeals from an order granting a sworn motion to dismiss filed pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure.
Appellee, Pizzagalli, was arrested and charged with delivery of marijuana. He filed a motion to dismiss. He did not notice the motion for hearing. The state did not file a traverse. Approximately seven weeks after the motion was filed the case came on for trial. A jury was picked and sworn. During a break, appellee’s counsel pointed out to the trial court that the motion to dismiss remained pending and should be disposed of. The state sought to make an oral traverse. This proffer was denied and the motion to dismiss was granted for failure of the state to timely traverse. This was error and we reverse.
Rule 3.190(d), Florida Rules of Criminal Procedure, provides in pertinent part:
The State may traverse or demur to a motion to dismiss which alleges factual matters. * * * Such demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.
Implicit in this language is the necessity that the state receive notice of the date and time of hearing in order to file its traverse “a reasonable time before” such date and time. The state was negligent in failing to file its traverse. However, appellee suffered no prejudice and therefore dismissal is too harsh a sanction, 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 thereafter, if appropriate, for trial on the merits.
REVERSED AND REMANDED WITH DIRECTIONS.
HERSEY, C.J., and DOWNEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Ihovany Rodriguez, 640 So. 2d 206 (Fla. 4th DCA 1994)…sal is too harsh a sanction where the state in good faith files a traverse, places in issue the defendant’s interpretation of the facts, and asserts that there are additional material facts that were omitted from the motion. See State v. Pizzagalli, 581 So. 2d 650 (Fla. 4th DCA 1991); State v. Kagan, 529 So. 2d 356 (Fla. 4th DCA), rev. denied, 587 So. 2d 569 (Fla.1988). Although admittedly not “fleshed out,” the state’s traverse did sufficiently place the material facts in issue. See State v. Weinstein, 623 S…
Authorities Cited
- State v. Burnison, 438 So. 2d 538 (Fla. 2d DCA 1983)
- State v. Higgins, 437 So. 2d 180 (Fla. 4th DCA 1983)
- State v. Sawyer, 526 So. 2d 191 (Fla. 3d DCA 1988)
- State v. Ryan, 513 So. 2d 753 (Fla. 4th DCA 1987)
- State v. Yarborough, 571 So. 2d 17 (Fla. 2d DCA 1990)