THE STATE OF FLORIDA, APPELLANT,
v.
DAVID LEE THOMPSON, APPELLEE
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Florida appellate court reversed trial court's dismissal of murder and weapons charges, holding that a sworn traverse to a motion to dismiss mandatorily requires denial of the motion under criminal procedure rules.
A sworn traverse filed by the prosecution to a motion to dismiss mandatorily requires denial of the motion under Fla.R.Crim.P. 3.190(d), unless the motion itself demonstrates undisputed facts establishing no prima facie case.
[1] A sworn traverse to a motion to dismiss filed by the prosecution mandatorily requires denial of the motion under Fla.R.Crim.P. …
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Join FLexlaw to unlock all legal intelligenceDavid Lee Thompson was charged with one count of first degree murder, two counts of attempted first degree murder, and one count of unlawful possessio…
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PER CURIAM.
Appellant, the State of Florida, contends that the trial judge erred in granting the sworn motion to dismiss filed by the appel-lee, David Lee Thompson, who was charged with one count of first degree murder, two counts of attempted first degree murder, and one count of unlawful possession of a firearm while engaged in a criminal offense.
We agree that the trial judge committed reversible error in granting the motion to dismiss the indictment. The record shows (a) that the sworn motion did not itself demonstrate that “the undisputed facts do not establish a prima facie case against the defendant” so that dismissal would not be justified even if the State had merely demurred or not responded at all to the motion, and (b) that the prosecution filed an appropriate sworn traverse which, under Fla.R.Crim.P. 3.190(d), mandatorily required that the motion be denied. State v. Johnson, 398 So. 2d 500 (Fla. 3d DCA 1981); State v. Horne, 399 So. 2d 49 (Fla. 2d DCA 1981); State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981); State v. Evans, 394 So. 2d 1068 (Fla. 4th DCA 1981); State v. Lawler, 384 So. 2d 1290 (Fla. 5th DCA 1980); State v. Cook, 354 So. 2d 909 (Fla. 2d DCA), cert. dismissed, 359 So. 2d 1212 (Fla.1978).
The order dismissing the indictment is reversed and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981)
- State v. Evans, 394 So. 2d 1068 (Fla. 4th DCA 1981)
- State v. Horne, 399 So. 2d 49 (Fla. 3d DCA 1981)
- State v. Cook, 354 So. 2d 909 (Fla. 2d DCA 1978)
- The Sch. Bd. OF Pinellas Cnty. v. State of Fla. Pub. Emps. Relations Comm'n & Pinellas Cnty. Custodial Union No. 1221 of the Int'l Bhd. of Firemen & Oilers, 354 So. 2d 909 (Fla. 2d DCA 1978)
- Mills v. Fla. Dep't OF Labor & Emp. Sec., 398 So. 2d 500 (Fla. 3d DCA 1981)
- State v. Johnson, 398 So. 2d 500 (Fla. 3d DCA 1981)
- State v. Lawler, 384 So. 2d 1290 (Fla. 5th DCA 1980)