STATE OF FLORIDA, APPELLANT,
v.
ALEX MONTGOMERY, APPELLEE
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The court held that the trial court erred in dismissing the information because the defendant failed to present evidence supporting his claim of immunity and the statute's requirements were not met.
The defendant moved to dismiss charges of aggravated assault and obstructing civil process, claiming statutory immunity under § 914.04, Fla.Stat., bas…
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PER CURIAM.
The State of Florida appeals an order of the trial court granting the defendant’s motion to dismiss an information charging the defendant with aggravated assault and obstructing civil process, on the ground that the defendant was immune from prosecution under § 914.04, Fla.Stat. We reverse.
The defendant moved to dismiss the information alleging without documented proof, that he had been forced by the State to testify in a case against one Harold Gordon, that he was not advised of the right to remain silent or the right against self-incrimination and that by testifying against Harold Gordon before a committing magistrate as to an incident in which he had been involved, he was forced to incriminate himself. The basis of the motion to dismiss was that this testimony rendered the defendant immune from prosecution under § 914.04, Fla.Stat. The trial court granted the motion and dismissed the information. On appeal, the State contends that it was error for the court to dismiss the information where the statute relied upon grants immunity only if the evidence is given before any court having felony triál jurisdiction, a grand jury, or a state attorney.
No evidence was offered by the movant to support his motion to dismiss other than representations by defendant’s counsel at the hearing on the motion to dismiss. The record does not reflect that the defendant appeared to present evidence at the hearing and we, therefore, find that there was no basis for the trial court to order dismissal of the information. Assuming arguendo that defendant Montgomery had presented evidence in support of the motion, we would be inclined to agree with the State’s contention that § 914.04, Fla. Stat., does not provide immunity under the circumstances in this case.
Reversed.
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Govoni v. State, 17 So. 3d 809 (Fla. 4th DCA 2009)…. 2d 1203 (Fla. 2d DCA 1977) (involving statutory transactional immunity under section 914.04, Florida Statutes (1975)). When a defendant moves to dismiss under rule 3.190(c)(3), he must offer evidence to support his motion. See State v. Montgomery, 310 So. 2d 440 (Fla. 3d DCA 1975). Also, courts resolve disputed fact issues when considering motions to suppress under subsections 3.190(h) and (i). The existing rule can thus embrace the procedure established by the first district in Peterson. Finally, I agree…
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State v. Luthrell Church & Ricardo Church, 353 So. 2d 219 (Fla. 2d DCA 1977)…ore improperly charged under that statute. We believe the trial court erred in two respects. First, the court should not have considered the facts represented by defense counsel when the state attorney refused to stipulate. See State v. Montgomery, 310 So. 2d 440 (Fla. 3d DCA 1975). Of course, Fla.R.Crim.P. 3.190(d) provides that facts in a written motion to dismiss which are not specifically denied or traversed by the state are deemed admitted. However, these motions contained no recitations of fact, so the…