STATE OF FLORIDA, APPELLANT,
v.
JOSEPH B. KEMP, APPELLEE
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Florida appealed the trial court's dismissal of a lottery-related information against defendant Kemp. The appellate court affirmed the dismissal, holding that the State's traverse failed to specifically deny material facts alleged in the defendant's motion to dismiss, causing those facts to be deemed admitted.
The trial court had authority to dismiss the information because the State's traverse failed to specifically deny the material facts alleged in the defendant's motion to dismiss. Under Rule 3.190(d), factual matters alleged in a motion to dismiss are deemed admitted unless specifically denied in the traverse, and a mere filing of a sworn document entitled 'traverse' without specific denials is insufficient as a matter of law.
[1] A motion to dismiss alleging factual matters must be sworn to by the defendant, not just counsel, to be legally sufficient.
[2] A traverse to a motion to dismiss must specifically deny material facts alleged in the motion to be effective.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 3.190(d), CrPR, provides that a motion to dismiss shall be denied if the state files a traverse which denies under oath a material fact alleged in the motion to dismiss.”
Establishes the controlling legal standard for what constitutes an effective traverse
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Join FLexlaw to unlock all legal intelligenceThe defendant filed a motion to dismiss an information charging him with aiding or assisting in conducting a lottery. The motion alleged factual matte…
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NATHAN, Judge.
The State of Florida appeals an order of the trial court dismissing an information filed against the defendant charging him with aiding or assisting in conducting a lottery.
The defendant filed a motion to dismiss which was signed and sworn to by defendant’s counsel, but not by the defendant himself. The motion alleged factual matters. The state filed a traverse to the motion stating in toto, “The State traverses to the Defendant’s sworn Motion to Dismiss.” Thereafter, testimony was taken. The state never objected to the motion being unsworn by the defendant.
On appeal, the state contends that once the traverse was filed, the trial court was without authority under the rule to dismiss the information.
We do not agree. Rule 3.190(d), CrPR, provides that a motion to dismiss shall be denied if the state files a traverse which denies under oath a material fact alleged in the motion to dismiss. The text of the traverse in the instant case, recited above, is devoid of any denial of any of the material facts alleged in the defendant’s motion. The Rule also provides that factual matters alleged by the defendant in his motion to dismiss shall be deemed admitted unless specifically denied in the traverse. The mere act of filing a sworn document entitled “traverse” is insufficient under the Rule as a matter of law. Therefore, the allegations of the motion to dismiss are deemed admitted and the information was properly dismissed. Camp v. State, Fla.App.1974, 293 So. 2d 114. The question of suppression of evidence is rendered moot.
Therefore, for the reasons stated and upon the authorities cited, the dismissal of the information hereby is affirmed.
Affirmed.
BARKDULL, C. J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)…eculation, conjecture, presumption nor assumption. It has been held, for example, that a traverse which merely states, “the State traverses to the defendant’s sworn motion to dismiss” is insufficient under the rule as a matter of law. State v. Kemp, 305 So. 2d 833 (Fla.3d DCA 1975). Sub judice, the State’s traverse did not deny that any material fact was undisputed, but merely denied that the undisputed material facts did not establish a prima facie ease. Having failed to specifically deny the facts as alleg…
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Amendments TO THE Florida Rules OF Criminal Procedure, 685 So. 2d 1253 (Fla. 1996)…ame as prior rule. 1977 Amendment. This amendment resolves any ambiguity in the rule as to whether the state must file a general or a specific traverse to defeat a motion to dismiss filed under the authority of rule 3.190(c)(4). See State v. Kemp, 305 So. 2d 833 (Fla. 3d DCA1974). [*1264] The amendment clearly now requires a specific travei’se to specific material fact or facts. 1992 Amendment. The amendments, in addition to gender neutralizing the wording of the rule, make a minor .grammatical change by s…
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The Fla. Bar. re Fla. Rules of Crim. Procedure, 343 So. 2d 1247 (Fla. 1977)…to dismiss. Committee Note This amendment resolves any ambiguity in the rule as to whether the State must file a general or a specific traverse to defeat a motion to dismiss filed under the authority of Rule 3.190(c)(4). [*1256] See State v. Kemp, 305 So. 2d 833 (Fla.3d DCA 1974). The amendment clearly now requires a specific traverse to specific material fact or facts. RULE 3.191. SPEEDY TRIAL ** (d)(2) When Time May Be Extended. The periods of time established by this Rule for trial may at any time be…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Camp v. State, 293 So. 2d 114 (Fla. 4th DCA 1974)