DEMETRIS L. HILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Demetris Hill appealed his convictions for first-degree murder, manslaughter, kidnapping, sexual battery, and strong-arm robbery, challenging the trial court's denial of his motion to dismiss and motion for continuance of a suppression hearing. The appellate court affirmed, finding the motion to dismiss was properly denied because the state traversed the material allegations, and the continuance issue was not properly reserved for appeal.
The trial court properly denied the motion to dismiss because the state's traverse specifically denied the material factual allegation regarding whether the child was 'quick' and supported this denial with expert opinion. The court also properly denied the continuance motion because Hill did not reserve his right to appeal the denial of the continuance; he only reserved his right to appeal the denial of the motion to suppress. Additionally, the continuance denial was not dispositive of the case.
[1] A motion to dismiss under Rule 3.190(c)(4) is properly denied when the State files a traverse that specifically denies material factual allegations and presents contrary…
[2] A defendant pleading nolo contendere may reserve the right to appeal the denial of a motion to suppress, but not the denial of a motion for continuance unless explicitly…
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Join FLexlaw to unlock all legal intelligence“Appellant's motion to dismiss, which was made pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), was properly denied because the state responded with a traverse in which it specifically denied appellant's material factual allegation that the child was not 'quick' and asserted in the traverse a statement of a physician declaring an opinion contrary to the allegation.”
Establishes that a state's traverse denying material factual allegations with expert support is a proper response that allows the motion to dismiss to be properly denied.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHill entered a nolo contendere plea to charges including first-degree murder, manslaughter by killing an unborn quick child, kidnapping, sexual batter…
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ERVIN, Judge.
In this criminal appeal from certain convictions entered following appellant’s plea of nolo contendere to the offenses of first-degree murder, manslaughter by killing an unborn quick child, kidnapping, sexual battery, and strong-arm robbery, appellant contends the trial court erred in denying his motions to dismiss and for continuance of a hearing scheduled as to a previously filed motion to suppress.1 We affirm.
Appellant’s motion to dismiss, which was made pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), was properly denied because the state responded with a traverse in which it specifically denied appellant’s material factual allegation that the child was not “quick” and asserted in the traverse a statement of a physician declaring an opinion contrary to the allegation. See Fla.R.Crim.P. 3.190(d); State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979); State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981).
As for appellant’s second point regarding the trial court’s denial of his motion for continuance of the suppression hearing, appellant did not reserve his right to appeal the denial of his motion for continuance upon entering his nolo conten-dere plea, rather he reserved his right to appeal the denial of his motion to suppress. Cf. State v. Ashby, 245 So. 2d 225, 228 (Fla.1971) (defendant may plead nolo and reserve right to seek review of question of law). Moreover, the denial of the motion for continuance was not dispositive of the case.2 See Brown v. State, 376 So. 2d 382, 384 (Fla.1979) (reserved legal issue must be dispositive of the case). Even if we were to consider the merits of the issue, as was done in Everett v. State, 535 So. 2d 667 (Fla.2d DCA 1988), we find no abuse of discretion on the part of the trial judge in denying the motion.
AFFIRMED.
KAHN and WEBSTER, JJ., concur. . Appellant had entered his pleas with the specific reservation of his right to appeal the denial of certain motions.
. We remind trial courts of their duty to determine whether reserved issues are dispositive. Leisure v. State, 429 So. 2d 434 (Fla. 1st DCA 1983); Everett v. State, 535 So. 2d 667 (Fla.2d DCA 1988).
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Citator
Authorities Cited
- State v. Ashby, 245 So. 2d 225 (Fla. 1971)
- Brown v. State, 376 So. 2d 382 (Fla. 1979)
- State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981)
- State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979)
- Everett v. State, 535 So. 2d 667 (Fla. 2d DCA 1988)
- Leisure v. State, 429 So. 2d 434 (Fla. 1st DCA 1983)