STATE OF FLORIDA, APPELLANT,
v.
VERNA WOOD, APPELLEE
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A motion to dismiss an information should be denied if the State files a traverse denying under oath a material fact alleged in the motion.
[1] A motion to dismiss an information alleging factual matters must be denied if the State files a traverse that denies under oath a material fact alleged in the motion.
[2] A sworn traverse by the State denying a material fact alleged in a defendant's motion to dismiss requires denial of the motion as a matter of law.
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Join FLexlaw to unlock all legal intelligenceThe defendant moved to dismiss a perjury charge, alleging the State had agreed to immunity and her testimony was inadmissible. The State traversed thi…
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WALDEN, Judge.
Verna Wood was charged with perjury. She moved to dismiss the information. The trial court granted the motion. The state appeals. We reverse with directions to reinstate the information.
Narrowly addressing ourselves to the dispositive issue contained in appellate Point I:
The Defendant’s filing of a Motion to Dismiss pursuant to 3.190(c)(4) should be denied as a matter of law when the State in response files a Traverse pursuant to 3.190(d) wherein a material fact is denied under oath,
we notice that the defendant’s motion to dismiss contained and vouched for this material fact allegation:
“That at no time did the State Attorney withdraw their agreement of immunity and pursuant to Florida Statutes 914.04 all testimony is inadmissible against Defendant on charge of perjury.”
The proper traverse of the state denied the above allegation.
The clear and controlling language of Rule 3.190(d), F.R.Cr.P., is as follows:
“(d) Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. A motion to dismiss under paragraph (c) (4) of this rule shall he denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss. Such demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.” (Emphasis added.)
This rule mandates that the defendant’s motion be denied. See generally State v. Giesy, 243 So. 2d 635 (4th D.C.A.Fla.1971).
We do not understand that the motion and traverse practice as contained in the mentioned rule authorizes a mini or preliminary trial upon the merits.
The issue is simply whether the indictment or information should be dismissed. It is decided as suggested by the rule by determining if a material fact in the motion is traversed by the state. Since it was here, the information should not have been dismissed.
We reverse and remand with respectful instructions to reinstate the information.
Reversed and remanded.
CROSS and MAGER, TJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979)…). We stated in Ellis that a proceeding pursuant to Rule 3.190 “is designed to create neither a trial by affidavit nor a dry run of a trial on the merits, nor is it supposed to serve as a ‘fishing expedition.’ ” As the Court stated in State v. Wood, 299 So. 2d 111 (Fla. 4th DCA 1974), if a material fact in the motion is traversed by the State the information should not be dismissed. [*120] The trial court could have and should have denied Huggins’ motion to dismiss for its failure to comply with Rule 3.190(c)…
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State v. Cook, 354 So. 2d 909 (Fla. 2d DCA 1978)…the trial judge granted the motion to dismiss. We reverse. Fla.R.Crim.P. 3.190(d) requires denial of a motion to dismiss where “the State files a traverse which denies under oath a material fact alleged in the motion to dismiss.” See State v. Wood, 299 So. 2d 111 (Fla. 2d DCA 1974). In the case before us the state strictly complied with the rule, and consequently it was error to dismiss the information. REVERSED and REMANDED. SCHEB and OTT, JJ., concur.…
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State v. Boom, 490 So. 2d 1370 (Fla. 2d DCA 1986)…material facts was enough to require the trial court to deny appellee’s motion to dismiss. State v. Dixon, 450 So. 2d 1280 (Fla. 2d DCA 1984); State v. Cook, 354 So. 2d 909 (Fla. 2d DCA), cert. dismissed, 359 So. 2d 1212 (Fla. 1978); State v. Wood, 299 So. 2d 111 (Fla. 2d DCA 1974). In this case, the state’s sworn traverse presented additional facts upon which it hoped to prove that appellee intended to assist another person to commit a crime. Although appellee argues that the state’s additional factual alle…
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- State v. Giesy, 243 So. 2d 635 (Fla. 4th DCA 1971)