GRALEN A. BELL, A/K/A GRALIN A. BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gralen Bell appeals a conviction for tampering with physical evidence. The Second District Court of Appeal reversed, holding that the undisputed facts did not establish a prima facie case of tampering because there was no evidence that Bell altered, destroyed, concealed, or removed any physical thing as required by Florida law.
The court held that the undisputed facts did not establish a prima facie case of tampering with physical evidence because there was no evidence that Bell altered, destroyed, concealed, or removed any physical thing as required by the statute. The trial court erred in denying Bell's motion to dismiss.
[1] A motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) requires the State to file a traverse contesting the facts alleged; otherwise, the facts are deem…
[2] The purpose of a motion to dismiss in a criminal case is to allow a pretrial determination of the law when the facts are not in dispute.
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Join FLexlaw to unlock all legal intelligence“When the State does not file a traverse contesting the facts alleged in a motion to dismiss, the facts as alleged are deemed admitted.”
Establishes that undisputed facts in motion and demurrer are accepted as true for purposes of evaluating the motion.
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Join FLexlaw to unlock all legal intelligenceOfficer Weiss observed Bell and an unknown male engage in a hand-to-hand transaction in an apartment parking lot, with currency exchanged for somethin…
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THREADGILL, EDWARD F., Senior Judge.
Gralen Bell appeals an order withholding adjudication and imposing probation for tampering with physical evidence. We reverse because the undisputed facts do not establish a prima facie case; thus, the trial court erred in denying Bell’s motion to dismiss the charge.
Bell filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), maintaining that the undisputed facts did not establish a prima facie case of tampering with physical evidence. The State filed a demurrer in which it admitted all of the material facts but disputed two minor facts which it considered inconsequential. Following the denial of his motion to dismiss, Bell entered a plea of no contest in exchange for the trial court withholding adjudication and imposing probation. Bell specifically reserved the right to appeal the denial of his motion to dismiss.
When the State does not file a traverse contesting the facts alleged in a motion to dismiss, the facts as alleged are 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 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 a motion to dismiss is de novo. Id.
Section 918.13, Florida Statutes (2000), states in pertinent part:
(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation!)]
Bell contends that the facts do not show that he altered, destroyed, concealed or removed any “thing.” The undisputed facts were that Officer Weiss saw Bell and an unknown black male engage in a hand-to-hand transaction in the parking lot of an apartment building. Bell was in a car, and he exchanged currency for something in return from the black male. The officer saw the black male place something in his left front pocket. The surrounding circumstances indicated to Officer Weiss that he had seen a hand-to-hand drug transaction. The three officers who stopped Bell in his car moments later claimed that they saw visible cocaine residue on Bell’s left hand. One of the officers field tested Bell’s left hand with a tissue. Officer Es-tevez stated that the substance field tested positive for cocaine. The tissue paper was submitted to the Florida Department of Law Enforcement (FDLE), but the FDLE found no drug residue on the tissue.
In State v. Jennings, 666 So. 2d 131 (Fla.1995), the court reversed an order granting a motion to dismiss a tampering with physical evidence charge. There, however, law enforcement saw the defendant toss alleged cocaine rocks into his mouth and swallow them after the officer shouted “police.” Here, the undisputed facts in the motion to dismiss and demurrer do not indicate that Bell altered, destroyed, concealed, or removed anything. At the hearing on the motion to dismiss, the State argued that the officer saw Bell put something towards his mouth. However, that allegation is not contained in the motion to dismiss.
Based on the facts presented in the motion and demurrer, we conclude that the State did not present a prima facie case of tampering with physical evidence. Thus, we reverse and remand with directions to dismiss the charge.
Reversed and remanded.
CASANUEVA and SALCINES, JJ., concur.
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State v. Walthour, 876 So. 2d 594 (Fla. 5th DCA 2004)…ty of the crime charged. State v. Williams, 539 So. 2d 575 (Fla. 5th DCA 1989); State v. Raulerson, 403 So. 2d 1102 (Fla. 5th DCA 1981); State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981). The appellate standard of review is de novo. Bell v. State, 835 So. 2d 392 (Fla. 2d DCA 2003). In this case, Walthour’s motion sets forth the undisputed facts, coupled with the photographs of the two knives. The motion to dismiss recited the following facts. 1. The Defendant is charged in this case with Ct. 1 Possession…
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State v. Ashler Rishaud Taylor, 16 So. 3d 997 (Fla. 5th DCA 2009)…rial court’s order in this respect is, accordingly, de novo. See State v. Brabson, 7 So. 3d 1119, 1120-21 (Fla. 2d DCA 2008); State v. Williams, 918 So. 2d 400 (Fla. 2d DCA 2006); Crocker v. Marks, 856 So. 2d 1123 (Fla. 4th DCA 2003); Bell v. State, 835 So. 2d 392 (Fla. 2d DCA 2003). In conducting such a review we accord the State the most favorable construction of the evidence, and we resolve all inferences against the defendant. Only where the most favorable construction to the State would still not establi…
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State v. Holland, 975 So. 2d 595 (Fla. 2d DCA 2008)…ainst the defendant. State v. Kalogeropolous, 758 So. 2d 110 (Fla.2000). All facts and inferences are to be viewed in the light most favorable to the State. Id. at 112. We review de novo the trial court’s Order Dismissing Information, Bell v. State, 835 So. 2d 392 (Fla. 2d DCA 2003), and we reverse. The charges against Holland are based on constructive possession because the contraband was not found in Holland’s actual possession. See Loyd v. State, 677 So. 2d 76 (Fla. 2d DCA 1996). To establish a prima faci…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Pasko, 815 So. 2d 680 (Fla. 2d DCA 2002)
- State v. Darrel Jennings, 666 So. 2d 131 (Fla. 1995)
- Simmons v. State, 666 So. 2d 131 (Fla. 1995)