STATE OF FLORIDA, APPELLANT,
v.
PAUL PASKO, APPELLEE
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The State appealed a circuit court's dismissal of charges against Paul Pasko for possession of child pornography. The court held that the photographs at issue constituted sufficient evidence of sexual conduct to establish a prima facie case, requiring reversal of the dismissal order.
The court held that nudity alone does not constitute sexual conduct, but the photographs and inferences drawn from them do provide the minimum proof necessary to establish a prima facie case of violation of section 827.071(1)(g), requiring reversal of the dismissal.
[1] A motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) is appropriate for a pretrial determination of the law when the facts are undisputed.
[2] On a motion to dismiss, the State must only establish a prima facie case, with the evidence construed most favorably to the State and all inferences resolved against the…
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Join FLexlaw to unlock all legal intelligence“On a motion to dismiss, the State is required only to show a prima facie case.”
Establishes the burden of proof standard the trial court must apply when reviewing a motion to dismiss in criminal cases.
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Join FLexlaw to unlock all legal intelligencePasko was found in possession of seventy-seven photographs of nude female children. Pasko filed a motion to dismiss arguing the pictures did not viola…
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DAVIS, Judge.
The State challenges the circuit court’s order dismissing the information against Paul Pasko. The information charged Pasko with seventy-seven counts of possession of child pornography, in violation of section 827.071(5), Florida Statutes (1999). We reverse.
The charges arose when Pasko was found to be in possession of seventy-seven photographs of nude female children. In response to the charges, Pasko filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). He alleged that based on the undisputed facts set forth in his motion, the State would be unable to establish a prima facie case because the pictures did not violate Florida law. The State acknowledged that the facts were undisputed but argued that the pictures did depict “sexual conduct” and thus did violate the statute. The trial judge reviewed the photographs and granted the motion to dismiss. In doing so, he made specific findings that the pictures, as a matter of law, did not depict sexual conduct. The State appeals that order. On a motion to dismiss, the State is required only to show a prima facie case. State v. Hunwick, 446 So. 2d 214 (Fla. 4th DCA 1984). Furthermore, the State is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant. Id. “In sum, only where the most favorable construction to the state would not establish a prima facie case of guilt should a Rule 3.190(c)(4) ... motion to dismiss be granted.” Id. at 215-16.
The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute. Styron v. State, 662 So. 2d 965 (Fla. 1st DCA 1995). Accordingly, the standard of our review of the trial court’s order is de novo.
We recognize that nudity alone does not constitute sexual conduct. See Schmitt v. State, 590 So. 2d 404, 409 (Fla.1991). However, our review here reveals that the instant photographs and the inferences drawn therefrom do provide the minimum proof necessary to establish a prima facie case of a violation of section 827.071(l)(g). Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.
FULMER and GREEN, JJ., Concur.
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Cited By (27 total)
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Gralen A. Bell v. State, 835 So. 2d 392 (Fla. 2d DCA 2003)…e deemed admitted. See State v. Jennings, 666 So. 2d 131 (Fla.1995); Fla. R.Crim. P. 3.190(d). “The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are [*394] not in dispute.” State v. Pasko, 815 So. 2d 680, 681 (Fla. 2d DCA 2002). In considering the motion, “the State is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant.” Id. The standard of review for a trial court order regarding…
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State v. Lebron, 954 So. 2d 52 (Fla. 5th DCA 2007)…nce and all inferences should be resolved against the defendant. Only when the most favorable construction to the State would not establish a prima facie [*55] case of guilt should a rule 3.190(c)(4) motion to dismiss be granted. See State v. Pasko, 815 So. 2d 680 (Fla. 2d DCA), review denied, 835 So. 2d 268 (Fla.2002). Vehicular homicide, pursuant to section 782.071, Florida Statutes (2004), is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operatio…
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State v. Ashler Rishaud Taylor, 16 So. 3d 997 (Fla. 5th DCA 2009)…of the evidence, and we resolve all inferences against the defendant. Only where the most favorable construction to the State would still not establish a prima facie case of guilt should a rule 3.190 motion to dismiss be granted. See State v. Pasko, 815 So. 2d 680 (Fla. 2d DCA), review denied, 835 So. 2d 268 (Fla.2002). Thus, this procedure is the functional equivalent of a motion for summary judgment in the civil context. See State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla.2000). As in the case of summary…
Previewing 3 of 27 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schmitt v. State, 590 So. 2d 404 (Fla. 1991)
- State v. Hunwick, 446 So. 2d 214 (Fla. 4th DCA 1984)
- Styron v. State, 662 So. 2d 965 (Fla. 1st DCA 1995)