STATE OF FLORIDA, APPELLANT,
v.
JOSEPH MCINTYRE, APPELLEE
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The court held that a motion to dismiss an information under Rule 3.190(c)(4), CrPR, must allege specific facts, and attaching depositions is not a substitute for these allegations.
[1] A motion to dismiss an information under Rule 3.190(c)(4), CrPR, requires the defendant to specifically allege the facts upon which the motion is based, and attaching dep…
[2] If there is any evidence upon which a jury of reasonable men could find guilt, the motion to dismiss must be denied, as the issue then becomes a jury question.
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Join FLexlaw to unlock all legal intelligenceThe state appealed an order dismissing an information charging the appellee with attempted escape. The defendant filed a motion to dismiss, attaching …
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DOWNEY, Judge.
The state has appealed from an order dismissing an information charging appel-lee with attempted escape.
Appellee, as defendant below, filed a motion to dismiss the information pursuant to Rule 3.190(c)(4), CrPR, attaching thereto the depositions of several state witnesses. The appellant filed a traverse and upon consideration of the depositions the court dismissed the information.
One of the eye witnesses testified to facts from which a jury could find appellee guilty of attempted escape. It matters not that other witnesses or evidence may be at issue with that testimony. At this stage of the case, as in a motion for summary judgment in a civil case, if there is any evidence upon which a jury of reaonable men could find guilt, it is a jury question and the motion to dismiss must be denied. State v. De Jerinett, Fla.App.1973, 283 So. 2d 126.
Lest our silence be taken as approval of the procedure used by the appellee in relying upon said depositions to meet the requirement of the rule that the facts on which the motion is based should be specifically alleged, we address ourselves briefly thereto.
Rule 3.190(c)(4), CrPR, enables a defendant to terminate a prosecution by motion to dismiss when “there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” But the motion to dismiss must set forth the facts on which it is based, otherwise there is nothing for the state to traverse. Attaching a deposition is not the equivalent of “alleging facts” as the rule requires. Use of a deposition is appropriate in support of the facts alleged in the motion but is not a substitute for such allegations. Here, appellee’s motion simply refers to the depositions as showing that no acts committed by appellee were in furtherance of an attempt to escape.
Since there is a jury issue presented as to the guilt of the appellee, the order dismissing Count II of the information is reversed and the cause is remanded for further proceedings.
Reversed.
WALDEN and MAGER, JJ., concur.
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State v. Marlow K. Smulowitz, 482 So. 2d 1388 (Fla. 3d DCA 1986)…s supported by sworn deposition testimony. This procedure fully complies with the requirement that “[t]he facts on which such motion is based should be specifically alleged and the motion sworn to.” Fla.R. Crim.P. 3.190(c)(4). See State v. McIntyre, 303 So. 2d 675, 676 (Fla. 4th DCA 1974); see also State v. Torres, 375 So. 2d 889, 891 (Fla. 3d DCA 1979). Moreover, the state’s “traverse/demurrer” failed to deny any material facts in the case and, accordingly, the trial court was free to rule on the merits of t…
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State v. Johnson, 398 So. 2d 500 (Fla. 3d DCA 1981)…uld therefore have been denied and the evidence presented to the jury for resolution. State v. McCray, 387 So. 2d 559 (Fla. 2d DCA 1980); State v. Smith, 376 So. 2d 261 (Fla. 3d DCA 1979), cert. denied, 388 So. 2d 1118 (Fla.1980); State v. McIntyre, 303 So. 2d 675 (Fla. 4th DCA 1974). Accordingly, the order appealed is reversed and the case remanded for further proceedings. Reversed and remanded.…
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State v. Holder, 400 So. 2d 162 (Fla. 3d DCA 1981)…sitating the denial of the motion. State v. McCray, 387 So. 2d 559 (Fla. 2d DCA 1980); State v. Smith, 376 So. 2d 261 (Fla. 3d DCA 1979), cert. denied, 388 So. 2d 1118 (Fla.1980); State v. Hires, 372 So. 2d 183 (Fla. 2d DCA 1979); State v. McIntyre, 303 So. 2d 675 (Fla. 4th DCA 1974); State v. De Jerinett, 283 So. 2d 126 (Fla. 2d DCA), cert. denied, 287 So. 2d 689 (Fla.1973). For the reasons stated, and upon the authorities cited, the trial court’s order is reversed and the case remanded for further proceedi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. de Jerinett, 283 So. 2d 126 (Fla. 2d DCA 1973)