STATE OF FLORIDA, APPELLANT,
v.
LOUIS WEINSTEIN, APPELLEE
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The trial court erred in granting the motion to dismiss because the state's traverse required denial of the motion and the facts alleged did constitute a crime.
An attorney was charged with soliciting business for motor vehicle tort claims. The attorney moved to dismiss, arguing the facts alleged did not const…
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PER CURIAM.
We reverse the order of the trial court granting appellee’s motion to dismiss pending criminal charges, filed under Florida Rule of Criminal Procedure 3.190(c)(4). Ap-pellee, an attorney, was charged with violations of sections 817.234(8), (9), and 877.02(1) and (3), Florida Statutes (1991). These statutes provide for criminal penalties for solicitation of business for the purpose of filing “motor vehicle tort claims or claims for personal injury protection benefits.”
The state had filed a three count information charging appellee with violations of the above statutes for his alleged attempt to solicit legal representation of one Phillip Mortilla while Mr. Mortilla was a patient in a hospital. Appellee filed a sworn motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). He alleged that the facts alleged by the state in the information, taken as true, did not constitute a crime, and that the statutory provisions under which he was charged were unconstitutional. Thereafter, the state filed a traverse, as provided in Florida Rule of Criminal Procedure 3.190(d).
After hearing, the trial court granted appellee’s motion, finding that each of the counts failed to allege a crime. The court rejected appellee’s challenge as to the constitutionality of the statutes, and this is not raised as an issue on dppeal.
The trial court erred in granting appellee’s motion, both procedurally and substantively. First, upon the state filing a sworn traverse pursuant to Florida Rule of Criminal Procedure 3.190(d), the rule provides that the trial court shall deny such a motion to dismiss. Secondly, the trial court erred in determining that the facts alleged in the state’s information, if taken as true, failed to make out a prima facie case that appellee had committed a crime.
Accordingly, we reverse the order granting appellee’s motion to dismiss, and remand for further proceedings.
GUNTHER, POLEN and KLEIN, JJ., concur.
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State v. Antonial Walker, 705 So. 2d 589 (Fla. 4th DCA 1997)…of Criminal Procedure, dismissing count I of the information charging attempted murder. The state’s traverse denied material allegations of the sworn motion to dismiss and set forth allegations on each element of the charge. See State v. Weinstein, 623 So. 2d 835, 836 (Fla. 4th DCA 1993); State v. Gale, 575 So. 2d 760, 761 (Fla. 4th DCA 1991); State v. Hunwick, 446 So. 2d 214, 215 (Fla. 4th DCA 1984). The Appellee’s motion to dismiss alleges that there were no disputed facts and that the following undispute…
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State v. Kerby Presume, 710 So. 2d 604 (Fla. 4th DCA 1998)…ed, the motion to dismiss must automatically be denied.” State v. Sawyer, 526 So. 2d 191, 191-92 (Fla. 3d DCA 1988) (emphasis added) (citing Fla. R.Crim.P. 3.190(d)); accord State v. Rosenberg, 648 So. 2d 1253 (Fla. 3d DCA 1995); State v. Weinstein, 623 So. 2d 835 (Fla. 4th DCA 1993); Whatley v. State, 584 So. 2d 219 (Fla. 4th DCA 1991); State v. McKinnon, 546 So. 2d 464 (Fla. 4th DCA 1989). The situation at bar is most factually akin to the third district’s decision in State v. Harrell, 588 So. 2d 54 (Fla.…
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State v. Ihovany Rodriguez, 640 So. 2d 206 (Fla. 4th DCA 1994)…d 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 So. 2d 835 (Fla. 4th DCA 1993); State v. Gale, 575 So. 2d 760 (Fla. 4th DCA 1991). Citing cases in which a defendant’s presence at the scene alone was insufficient evidence of dominion and control, Appellee asserts that under any interpretation of the facts,…