State's MTS Case Law2

CUMMINGS v.
STATE
No. NN-497.
378 So.2d 879 (1979)

Clifford CUMMINGS, Appellant, v. STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
December 21, 1979.
Attorney(s) appearing for the Case

Steven H. Parton, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
SHIVERS, Judge.
Appellant pled nolo contendere to possession of less than five grams of cannabis and reserved
right to appeal. Appellant contends the trial court erred in denying his motion to dismiss the
information and erred in denying his motion to suppress the contraband.
The cannabis was found in appellant's car driven by appellant's brother. There were four people
in the car at the time appellant's car was stopped: appellant, his brother, and two others. All of
the occupants except appellant denied knowledge of the marijuana. Appellant made no comment.
Appellant contends the facts fail to establish a prima facie case of constructive possession, to-
wit, that appellant knew of the presence of a controlled substance and had the ability to maintain
control over it. Appellants contend the facts establish joint possession of the trunk and not
exclusive possession. Whether or not appellant had such knowledge must be inferred from the
facts. Knowledge is an ultimate fact question not subject to a motion to dismiss under Section
3.190(c), Florida Rules of Criminal Procedure. See Spataro v. State, 179 So.2d 873 (Fla.2d DCA
1975). It would
[378 So.2d 880]
have been for the jury to determine the credibility of the other occupants as to their denials.
The facts that the appellant owned the car and that the other occupants of the car denied
knowledge of the marijuana were sufficient to withstand the motion to dismiss. These facts
constitute evidence upon which the jury could have convicted appellant had the case gone to
trial.
Appellant further contends the motion to suppress should have been granted because the arrest
was illegal. The Quincy Department of Public Safety had advised the Chattahoochee Police
Department to be on the lookout for this automobile because the occupants were suspected of
having stolen gasoline pumped into the car. Appellant was shortly thereafter arrested in
Chattahoochee as appellant's car matched the description which included the Mississippi license
number. Appellant contends this arrest was illegal, being a warrantless arrest committed outside
the officer's presence.
1
CUMMINGS v. STATE, 378 So.2d 879 (1979)
The language of Section 901.34, which pertains, is clear. Any police officer may arrest on or off
the premises and without a warrant any person he has probable cause for believing has
committed larceny in retail or wholesale establishments. Here the policeman had such probable
cause.
AFFIRMED.
McCORD and LARRY G. SMITH, JJ., concur.
2
CUMMINGS v. STATE, 378 So.2d 879 (1979)
D.K.D. v. STATE
No. 64603.
470 So.2d 1387 (1985)

D.K.D., a Juvenile, Petitioner, v. STATE of Florida, Respondent.
Supreme Court of Florida.
June 6, 1985.

Michael E. Allen, Public Defender and Paula S. Saunders, Asst. Public Defender, Second
Judicial Circuit, Tallahassee, for petitioner.
Jim Smith, Atty. Gen. and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for respondent.
BOYD, Chief Justice.

This case is before the Court on petition for review of the decision of the district court of appeal
affirming the trial court's order denying petitioner D.K.D.'s motion to dismiss a petition for
adjudication of juvenile delinquency. The district court of appeal certified that its decision passed
upon a question of great public importance, thus giving this Court the judicial power to review
the decision. Art. V, § 3(b)(4), Fla. Const.
The certified question is presented as follows:
Is the Procedural Remedy Provided For By Fla.R.Cr.P. 3.190(c)(4) Available In Juvenile
Proceedings?
D.K.D. v. State, 440 So.2d 468, 469 (Fla. 1st DCA 1983). The district court ruled so as to answer
the question in the negative. We agree, answer the certified question in the negative, and approve
the decision of the district court of appeal.
Petitioner was charged with juvenile delinquency by reason of having committed an act
forbidden by the criminal law of Florida. The defense filed a motion to dismiss on the ground
that under the undisputed facts shown by the evidence to be presented the state would not be able
to make out a prima facie case of guilt. The
[470 So.2d 1389]
trial court denied the motion over the accused's objection that because the state had not filed a
traverse to the motion the allegations of the motion had to be admitted. Then the accused
juvenile pled nolo contendere, reserving the right to appeal the denial of the motion to dismiss.
See, e.g., Vernold v. State, 376 So.2d 1166 (Fla. 1979); McNamara v. State, 357 So.2d 410 (Fla.
1978).
Petitioner argues that Florida Rule of Juvenile Procedure 8.130(b)(2), providing for motions to
dismiss in juvenile delinquency proceedings, incorporates the procedural remedies provided for
by Florida Rule of Criminal Procedure 3.190, governing motions to dismiss in criminal cases.
Under rule 3.190(d), factual matters in a motion to dismiss are deemed admitted unless denied by
1
D.K.D. v. STATE, 470 So.2d 1387 (1985)
means of a traverse or demurrer by the state to the motion. Because no traverse was filed to the
juvenile's motion to dismiss here, petitioner claims the right to dismissal based on the unrefuted
allegations of the motion to dismiss. It is clear to us that this argument is without merit because
juvenile rule 8.130(b)(2) contains no such provision for a traverse or demurrer by the state.
The rules of criminal procedure were promulgated to govern court processes in criminal cases
and the rules of juvenile procedure to govern in juvenile cases. We see no implied incorporation
of one of the former into the latter. Petitioner points out that the committee note accompanying
juvenile rule 8.130(b)(2) when the juvenile rules were promulgated stated as follows: "(b)(2)
General provision for all defenses not raised by a guilty plea [sic] to be made by a motion to
dismiss. [See Fla.R.Crim.P. 3.190(b), (c), and (d)]." The Florida Bar In re Florida Rules of
Juvenile Procedure, 345 So.2d 655, 669 (Fla. 1977) (second set of brackets in original).
Petitioner argues that the bracketed reference to criminal rule 3.190(b), (c), and (d) indicates an
intent on the part of the committee to incorporate into the juvenile rule the provisions found in
the criminal rule regarding the effect of the state's not traversing a motion to dismiss. It is clear to
us that the note does not indicate any such intention. Even if that were the committee's intention,
committee notes are only persuasive authority and are not binding; it is the intent of this Court in
promulgating a rule of procedure, as expressed in the rule itself, that governs its interpretation.
There is case-law support, however, for petitioner's position. In State v. J.T.S., 373 So.2d 418
(Fla. 2d DCA 1979), the court, finding that a motion to dismiss in a juvenile case had to be
denied because the state had filed a traverse specifically disputing the allegations of the motion,
said that rule 8.130(b)(2) "implicitly incorporates Rule 3.190(c) and (d)," citing the committee
note to rule 8.130(b)(2). 373 So.2d at 419 n. 1. We disapprove J.T.S. and hold that there is no
requirement of a traverse to a motion to dismiss under juvenile rule 8.130(b)(2).
Juvenile rule 8.130(b)(2) is written in more general terms than are the provisions of criminal rule
3.190(b) through (f). The juvenile rule provides greater flexibility to the court and the parties,
and appears to have been designed to simplify procedure by avoiding some of the necessarily
intricate pretrial manueverings provided for in criminal cases. In a juvenile case, the court has
broader discretion to grant or deny a motion to dismiss without regard to mechanical rules
turning upon the filing of a traverse or the lack thereof.
We do not mean to prohibit the general use of responsive pleadings not specifically provided for
by rule. We only hold that neither the filing nor the lack of filing of a responsive pleading to a
motion to dismiss in a juvenile case has the same effect as either might have in a criminal case
under rule 3.190.
We hold that juvenile rule 8.130(b)(2) does not make available to the accused or the state the
procedural remedies provided for by criminal rule 3.190. The decision of the district court of
appeal is therefore approved.
It is so ordered.
[470 So.2d 1390]
OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.
2
D.K.D. v. STATE, 470 So.2d 1387 (1985)
DETERS v. STATE
No. 98-2559.
741 So.2d 1158 (1999)

Brian DETERS, Appellant, v. STATE of Florida, Appellee.
District Court of Appeal of Florida, Fourth District.
August 25, 1999.

Rick S. Cullen of Law Offices of Rick S. Cullen, P.A., Boca Raton, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Elaine L. Thompson, Assistant
Attorney General, West Palm Beach, for appellee.
SHAHOOD, J.
Appellant, Brian Deters, pled no contest reserving the right to appeal the trial court's denial of his
sworn motion to dismiss the charge of third degree grand theft, which was filed pursuant to Rule
3.190(c)(4), Florida Rules of Criminal Procedure. Because the issue of felonious intent was
appropriately one for the trier of fact, we hold that the trial court did not err in denying the
motion, and affirm.
In this case, appellant's motion to dismiss stated "that the undisputed material facts absolutely
fail to present a prima facie showing that Brian Deters did, on August 29, 1997, with the
requisite specific intent commit a Grand Theft of the subject property of IDIS Corporation."
(emphasis supplied).
As held by this court in S.T.N. v. State, 474 So.2d 884, 885-86 (Fla. 4th DCA 1985):
In our view, a motion to dismiss is not the proper vehicle for this attack. This court, as well as
other district courts of appeal, have consistently held that intent and knowledge are not proper
issues to be decided on a motion to dismiss. State v. Alexander, 406 So.2d 1192 (Fla. 4th DCA
1981); State v. Stewart, 404 So.2d 185 (Fla. 5th 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. McCray, 387
So.2d 559 (Fla. 2d DCA 1980); State v. Rogers, 386 So.2d 278 (Fla. 2d DCA), rev. denied, 392
So.2d 1378 (Fla.1980); State v. Norris, 384 So.2d 298 (Fla. 4th DCA 1980); State v. J.T.S., 373
So.2d 418 (Fla. 2d DCA 1979); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972).
In this case, there was sufficient conflicting evidence from which a trier of fact could reasonably
infer intent. We, accordingly, hold that intent was not a proper issue to be decided on a "(c)(4)"
motion to dismiss.
Affirmed.
WARNER, C.J., and TAYLOR, J., concur.
1
DETERS v. STATE, 741 So.2d 1158 (1999)
ELLIS v. STATE
No. DD-127.
346 So.2d 1044 (1977)

Spencer P. ELLIS, Jr., Appellant, v. STATE of Florida, Appellee.
May 27, 1977.
Rehearing Denied June 30, 1977.

Leo A. Thomas, Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie,
Pensacola, for appellant.
Robert L. Shevin, Atty. Gen., and Patti L. Englander, Asst. Atty. Gen., for appellee.
BOYER, Chief Judge.

Appellant, having been charged by amended information with possession of heroin and
possession of more than five grams of marijuana, moved to dismiss the amended information,
pursuant to Fla.R. Crim.P. 3.190(c)(4), on the ground that the undisputed material issues of fact
failed to establish a prima facie case. The State, in its traverse filed pursuant to Fla.R.Crim.P.
3.190(d), merely denied that the undisputed material facts did not establish a prima facie case.
After a hearing, the trial court denied the motion to dismiss. Appellant thereupon entered a plea
of nolo contendere to the charges, expressly reserving his right to appeal the denial of his motion
to dismiss which is the sole issue with which we are concerned in this appeal.
Before delving into the facts of the case, we find it desirable to briefly discuss the nature and
purpose of a 3.190(c)(4) proceeding. (We here address the procedural issue which did not
appear, but was mentioned in footnote (1), in State v. Snowden, Fla.App., 345 So.2d 856,
Opinion filed May 11, 1977.) In State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971), our sister
court explained that the purpose of the rule was "to permit a pretrial determination of the law of
the case where the facts are not in dispute, in a sense somewhat similar to summary judgment
proceedings in civil cases (except that a dismissal under the rule is not a bar to a subsequent
prosecution)." The proceeding 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".
The question arises: Upon whom does the burden of proof fall under the rule? Initially, the
defendant in his sworn motion must allege that the material facts of the case are undisputed,
describe what the undisputed material facts are, and demonstrate that the undisputed facts fail to
establish a prima facie case or that they establish a valid defense (either an affirmative defense or
negation of an essential element of the charge). Obviously, if the undisputed facts as alleged in
the motion to
[346 So.2d 1046]
1
ELLIS v. STATE, 346 So.2d 1044 (1977)
dismiss do not meet such burden then any response from the State would be superfluous, and the
motion may be summarily denied. If, however, the allegations of the motion meet the above test,
then the burden shifts to the State. If the State wishes to avoid the effect of the motion, then its
traverse or demurrer, as described in Rule 3.190(d), must place a material issue of fact in dispute
or establish that the undisputed facts do establish a prima facie case. In the former instance,
denial by the State under oath in its traverse of a specific material fact alleged in the motion to
dismiss requires automatic denial of the motion to dismiss. Conversely, those facts alleged in the
motion to dismiss which are not specifically denied by the State are, for the purpose of the
motion, deemed admitted. For the State's traverse to effectively deny a material fact alleged in
the motion to dismiss, it need not be based in whole or in part on the personal knowledge of the
state attorney who files it nor must it be buttressed by the affidavit of the victim or other witness.
State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975). While the rule does not require the State to
allege any facts which negate the factual matters set forth in the motion to dismiss, the State must
nevertheless, when it purports to deny material facts, deny those facts with specificity. See State
v. News-Press Pub. Co., 338 So.2d 1313, 1318 (Fla. 2d DCA 1976). When a motion to dismiss
meets the criteria mentioned above and causes the burden of proof to shift to the State, then the
State's failure to file a traverse will mandate granting the motion. Camp v. State, 293 So.2d 114
(Fla. 4th DCA 1974). It should go without saying that any denial by the State must be in good
faith, and not be based upon speculation, 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 case. Having failed to
specifically deny the facts as alleged in the motion to dismiss, the State is deemed to have
admitted those facts. The rule, however, is silent as to whether the State in its traverse must list
those material facts, either disputed or undisputed, upon which it will rely at hearing on the
motion and which were not contained in defendant's motion to dismiss. Although, in our view,
the better practice would be for all such factual matters to be contained or alluded to in the State's
traverse and that the State should not be permitted (absent an amendment to the traverse) to
present evidence at the hearing on the motion to dismiss concerning facts which were not
contained or alluded to within the motion to traverse, that problem does not arise in this case
because apparently the State did not present evidence at the hearing held on defendant's motion.
Accordingly, we reserve that determination until the issue is properly raised.
In its brief, the State misconceives the purpose of Rule 3.190(c)(4), arguing that appellant is
seeking a premature trial on the merits in the guise of a motion to dismiss. The record does not so
reflect. Appellant has merely alleged certain facts which he claims are undisputed and material.
The State could have either denied any of the material facts in its traverse, or presented
additional facts. The State's position, then, must stand or fall on the bare denial that the
undisputed facts do not establish a prima facie case.
Turning to the facts of the case as revealed by the motion to dismiss, it appears that on March 25,
1976, Officers Cotton, Boswell, and Hughes executed a search warrant at 1121 Hope Street in
Pensacola. Although appellant had lived at that address by himself since November of 1975,
other individuals had been inside the premises and had stayed overnight on occasion during the
weeks prior to the execution of the search warrant. Further, appellant occasionally stayed
overnight at his mother's residence in Pensacola. At the time the search of his home was
conducted, appellant
2
ELLIS v. STATE, 346 So.2d 1044 (1977)
[346 So.2d 1047]
was out of town. When the officers arrived to search the premises, there was no one there. As the
warrant was being executed, Ernest Riggs, whom appellant had requested to take care of his dog
while he was out of town, approached the house and was arrested. The police found numerous
drugs in the kitchen of the home. Although appellant's fingerprints were found on a small mirror
on the kitchen table, it could not be determined when the prints were made.
Under the rationale of the appellant, the State failed to establish a prima facie case because,
under the undisputed facts, the essential element of possession, either actual or constructive,
could not be found. By judicial interpretation, possession or control within the meaning of a drug
statute means either actual physical possession with knowledge of same or constructive
possession where the accused knows of the presence of the item on or about his premises and has
the ability to maintain control over it. Griffin v. State, 276 So.2d 191 (Fla. 4th DCA 1973). The
State asserts that appellant's motion to dismiss is deficient because of his failure to deny that he
was in actual or constructive possession of the drugs. Such reasoning is specious. Normally, it is
up to the trier of facts to determine from the evidence whether the State has established either
actual or constructive possession. Thus, where the material facts are undisputed, the trial court, in
considering a defendant's motion to dismiss, must determine whether the undisputed facts raise a
jury question as to the issue of possession in much the same manner as the judge evaluates a
motion for directed verdict of acquittal made at trial.
Since the undisputed material facts in this case clearly show that appellant was not in actual
possession of the drugs, the dispositive question is whether a jury could have concluded from the
undisputed facts that the appellant was in constructive possession of the drugs, i.e., whether
appellant knew of the presence of the drugs on or about his premises and had ability to maintain
control over them. Under the circumstances of this case, it is clear that appellant was not in
constructive possession. Although appellant was owner of the premises upon which the drugs
were found, he was not at home at the time of the search, being out of town. Other persons had
been in or about the premises over a period of time and the drugs were not found in a location
which would have been within appellant's exclusive knowledge or under his exclusive control,
but were discovered in the kitchen which was easily accessible to all persons entering the
premises. Since the State under the undisputed facts did not establish possession which is an
essential element of the crime charged, appellant's motion to dismiss should have been granted.
Accordingly, the cause is reversed and remanded with directions that the information filed
against appellant be dismissed.
REVERSED AND REMANDED WITH DIRECTIONS.
RAWLS and McCORD, JJ., concur.
3
ELLIS v. STATE, 346 So.2d 1044 (1977)
FLO-SUN, INC. v. KIRK
Nos. SC95044, SC95045.
783 So.2d 1029 (2001)

FLO-SUN, INC., et al., Petitioners, v. Claude R. KIRK, et al., Respondents. Sugar Cane Growers
Cooperative of Florida, Petitioner, v. Claude R. Kirk, et al., Respondents.
March 29, 2001.

Joseph P. Klock, Jr., and Edward M. Mullins of Steel, Hector & Davis, LLP, Miami, FL, and
Gary S. Gibson, West Palm Beach, FL, on behalf of Flo-Sun, Inc. and Okeelanta, Corporation;
and Gary P. Sams, Robert P. Smith, and Gabriel E. Nieto of Hopping, Green, Sams & Smith,
P.A., Tallahassee, FL, Margaret L. Cooper of Jones, Foster, Johnson & Stubbs, P.A., West Palm
Beach, FL, and Jane Kreusler-Walsh, P.A., Palm Beach, FL, on behalf of Sugar Cane Growers
Cooperative of Florida, for Petitioners.
Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, FL, and
Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, FL, for
Respondents.
James T. Hendrick, County Attorney, Key West, FL, for Monroe County, FL, Amicus Curiae.
LEWIS, J.
We have for review Kirk v. United States Sugar Corp., 726 So.2d 822 (Fla. 4th DCA 1999),
based on express and direct conflict with State v. SCM Glidco Organics Corp., 592 So.2d 710
(Fla. 1st DCA 1991); Communities Financial Corp. v. Florida Department of Environmental
Regulation, 416 So.2d 813 (Fla. 1st DCA 1982); Gulf Pines Memorial Park, Inc. v. Oaklawn
Memorial Park, Inc., 361 So.2d 695 (Fla. 1978) and State ex rel. Dep't of General Services v.
Willis, 344 So.2d 580 (Fla. 1st
[783 So.2d 1032]
DCA 1977). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth
below, we approve the district court's decision to the extent that it holds that chapter 403 of the
Florida Statutes did not impliedly repeal chapter 823 of the Florida Statutes. Further, we quash
the remainder of the district court's decision to the extent that it conflicts with our holding today
that even though a public nuisance cause of action is still available, the doctrine of primary
jurisdiction counsels in favor of having an administrative agency with the experience and
expertise to deal with the complex issues presented in this case address Respondents' grievances.
FACTS
Former Governor Claude Kirk, individually and on behalf of the State of Florida, along with
various residents of Palm Beach County (collectively "Respondents"), filed the present action
against United States Sugar Corporation, Sugar Cane Growers Cooperative of Florida, Flo-Sun,
1
FLO-SUN, INC. v. KIRK, 783 So.2d 1029 (2001)
Incorporated, Okeelanta Corporation, A Duda & Sons Incorporated, and QO Chemicals
(collectively "Petitioners").1 The amended complaint alleged that Petitioners, with the exception
of QO Chemicals, have maintained a public nuisance by engaging in the cultivation, harvesting
and processing of sugar cane in a manner that annoys the community and injures the health of
the community at large and Respondents individually. As to QO Chemicals, the complaint
alleged that the company disposes of furfural, a chemical by-product derived from sugar cane
processing, by deep-well injection without a Florida Department of Environmental Protection
("DEP") permit. The complaint alleged that Petitioners' activities damage the use and enjoyment
of Respondents' property; cause personal discomfort, inconvenience, and annoyance; devastate
the air, land and water quality; pollute the public lands; injure wildlife; and cause bodily injury to
Respondents' physical health and well-being. The complaint further alleged that due to the
"government's complicity in the offensive conduct," only the judicial branch has the will,
authority, power and independence to abate the nuisance. More specifically, Respondents alleged
that:
Government from the local municipal level to the Federal level has aided and abetted in the
creation and maintenance of the nuisance complained of by failing to enforce existing laws
prohibiting and regulating [Petitioners'] offensive conduct and by providing direct and indirect
economic subsidies to support [Petitioners'] offensive conduct....
Amended Complaint at 5. Respondents sought injunctive relief to terminate Petitioners'
agricultural and related operations, as well as compensatory damages and costs.
Petitioners filed a motion to dismiss based in part upon the doctrine of primary jurisdiction and
the Respondents' failure to employ available administrative remedies. After a hearing, the trial
court dismissed the amended complaint with prejudice. In a twelve-page order, the trial court
reasoned:
If [Respondents] were granted the relief prayed for in their Amended Complaint, the result
would be to have this Court substitute its judgement for that of the Florida Legislature, the
Florida Department of Environmental Protection, the Florida Department of Agriculture and
Consumer Services, and other state and federal agencies as it relates to the environmental laws,
rules, regulations and standards under which [Petitioners'] activities are controlled and regulated.
This would require the Court to make decisions and set standards with regard to numerous areas
of environmental regulation, responsibility for which has been delegated to various state and
federal regulatory agencies, and would further require this Court to develop the resources and
special expertise which these agencies possess to control air and water pollution and to protect
the environment and the public health of South Florida. The simple fact is that the judicial
branch is neither possessed of the technical expertise nor would it be appropriate for it to
entertain jurisdiction over a public nuisance complaint such as the one pleaded by [Respondents]
here. To do so would create a substantial risk of inconsistent requirements among the separate
branches of state and federal government and would allow claims to be advanced which are not
cognizable in this Court under controlling case law.
Order Granting Motion to Dismiss at 8.
The trial court further noted that chapter 823 was impliedly superseded by part I of chapter 403,
at least as the former relates to air and water pollution; accordingly, because Respondents' claims
were based on violations of section 823.05, Florida Statutes (1995), and because the claims were
related to the alleged pollution of the air and water, the trial court concluded that Respondents'
public nuisance claim warranted dismissal on this basis as well. Finally, the trial court
2
determined, without much explanation, that the amended complaint must be dismissed because
Respondents lacked standing.2 Respondents appealed.
On appeal, the Fourth District reversed. Specifically, the district court wrote:
[Respondents] are alleging that agency errors have been so egregious or devastating that
administrative remedies would be insufficient; that the governmental agencies entrusted with
preventing the sort of pollutants and harm allegedly caused by [Petitioners] are not doing their
job and that [Petitioners] are operating in a manner contrary to existing statutes and regulations.
Taking these allegations as true, as a court must do on a motion to dismiss, the trial court erred in
determining that the doctrine of primary jurisdiction applies to bar [Respondents'] public
nuisance suit at this juncture.
Kirk, 726 So.2d at 825. The district court added:
If [Petitioners] can later disprove [Respondents'] allegations through record evidence, then the
doctrine of primary jurisdiction might serve as a basis for disposing of this case.
Id.
Additionally, relying primarily on the "cumulative remedies" clause in section 403.191, Florida
Statutes (1995), the Fourth District disagreed with the trial court and held that that chapter 403
had not impliedly superseded chapter 823. Finally, the district court concluded that Respondents
did have standing to initiate this action. Petitioners sought this Court's review.3
[783 So.2d 1034]
ANALYSIS
1. Background
The Florida Legislature has devised a detailed and exhaustive regulatory system to address issues
which arise in connection with the preservation and protection of the environment. See chapters
373 (Water Resources; encompassing the "Everglades Forever Act"); 376 (Pollutant Discharge
Prevention and Removal); 403 (Environmental Control); 487 (Pesticides); and 590 (Forest
Protection), Florida Statutes. Relatedly, the Legislature has empowered several administrative
agencies—relevant to our purposes are the Florida Department of Environmental Protection
("DEP"), the South Florida Water Management District ("SFWMD"), and the Florida
Department of Agriculture and Consumer Services, Division of Forestry ("DACS")—to
promulgate and enforce regulations for the protection of the environment. See Fla. Admin. Code
Titles 62(DEP); 40-E (SFWMD); and 5I-2 (DACS).
The decisions of these administrative agencies are subject to review pursuant to the
Administrative Procedure Act ("APA"), codified in chapter 120 of the Florida Statutes. Under
the APA, any person whose substantial interests are affected by agency action may petition the
pertinent agency for a formal hearing, conducted by an independent administrative law judge
from the Division of Administrative Hearings. See § 120.569, Fla. Stat. (1995). Moreover, any
person with a substantial interest in any agency rule may petition that agency to adopt, amend or
repeal a rule. See § 120.54(7), Fla. Stat. (1995). Finally, under the APA, an agency's final action
is also subject to judicial review in the district courts of appeal. See § 120.68, Fla. Stat. (1995).
2. Merits
To reiterate, the trial court dismissed Respondents' amended complaint based on its conclusion
that (1) chapter 403 impliedly superseded chapter 823 as the latter relates to air and water
pollution; and (2) the doctrine of primary jurisdiction mandated dismissal. The district court
3
reversed, determining that (1) chapter 403 did not impliedly supersede chapter 823; and (2) the
doctrine of primary jurisdiction did not bar Respondents' public nuisance complaint because
Respondents alleged that prior administrative agency errors had been egregious or devastating.
A. Relationship of Chapter 403 to Chapter 823
Part I of chapter 403 of the Florida Statutes, also referred to as the "Florida Air and Water
Pollution Control Act," ( hereinafter "Act"), is undoubtedly comprehensive legislation relating to
the protection of Florida's air and waters from contamination. The Act deposits the power and
duty to control and prohibit air and water pollution with the DEP. See § 403.061, Fla. Stat.
(1995). It also includes the following provision:
403.191 Construction in relation to other law. (1) It is the purpose of this act to provide
additional and cumulative remedies to prevent, abate, and control the pollution of the air and
waters of the state. Nothing contained herein shall be construed to abridge or alter rights of
action or remedies in equity under the common law or statutory law, criminal or civil, nor shall
any provisions of this act, or any act done by virtue thereof, be construed as estopping the state
or any municipality, or person affected by air or water pollution, in the exercise of their rights in
equity or under the common law or statutory law to suppress nuisances or to abate pollution.
(Emphasis supplied.)
Despite this apparently clear legislative declaration that the remedies provided by
[783 So.2d 1035]
the Act are cumulative in nature, the trial court in this case dismissed Respondents' public
nuisance cause of action in rendering the determination that chapter 403 has impliedly
superseded chapter 823, at least as the latter relates to the abatement of air or water pollution. In
support, the trial court relied on the First District's decision in State v. SCM Glidco Organics
Corp., 592 So.2d 710 (Fla. 1st DCA 1991). In SCM Glidco, the district court considered the
dismissal of two criminal prosecutions for violations of section 823.01, Florida Statutes (1991),
which creates a second-degree misdemeanor for maintaining a public nuisance. In upholding the
dismissal, the district court held that chapter 403 superseded section 823.01 insofar as any
application of the latter section to air pollution is concerned. See SCM Glidco, 592 So.2d at 712.
Specifically, in a very short two-sentence analysis, the majority in SCM Glidco reasoned that
chapter 403 was intended to cover the entire subject area of air pollution, and that as a result, it
replaced the earlier, nonspecific legislation codified as section 823.01. See id.
Judge Ervin, in a lengthy, well-reasoned dissent, criticized the majority's determination,
reasoning that the conduct criminalized in section 823.01 was different and more encompassing
than that proscribed by chapter 403. See id. at 716. Judge Ervin noted that to establish a violation
under chapter 403, the State was required to offer proof of harm or injury, see § 403.161, Fla.
Stat. (1995); whereas under section 823.01, the State need only show community annoyance. See
id. Judge Ervin discussed well-established principles of statutory analysis and construction and
further noted the far different elements of proof involved with section 403.161 than those
applicable under section 823.01. See id.
The Second District, in State v. General Development Corp., 448 So.2d 1074 (Fla. 2d DCA
1984), reached a result contrary to that of the majority in SCM Glidco. General Development
involved a civil action initiated by a state attorney seeking enforcement of provisions contained
within chapter 403. The trial court entered a final order dismissing the action based upon lack of
standing because the state attorney had independently initiated the action (i.e., not at the
direction of the governor, attorney general, or the Department of Environmental Regulation).
4
Although it determined that the state attorney had no independent authority to initiate an
independent civil action under or pursuant to chapter 403, it nevertheless noted that the state
attorney had the authority to initiate an action to abate or enjoin a public nuisance. Specifically,
the court relied on the "cumulative remedies" provision in section 403.191 in support of its
reasoning that "a public nuisance cause of action seems to be one of the `rights of action or
remedies in equity under the common law or statutory law' which is not abridged or altered by
chapter 403 and is cumulative to the remedies provided in that chapter." General Development,
448 So.2d at 1080 (citing State ex rel. Shevin v. Tampa Elec. Co., 291 So.2d 45, 48 n. 8 (Fla. 2d
DCA 1974)).
Chapter 403, on its face, does not appear to repeal any provisions of chapter 823. As such, for us
to determine that chapter 403 supersedes chapter 823, we would be required to conclude that
chapter 403 does so impliedly. To that end, the general rule applicable here is that implied
repeals are not favored and will not be upheld in doubtful cases. See State v. Digman, 294 So.2d
325 (Fla.1974). Moreover, before making a determination that a subsequent statute has impliedly
repealed one previously enacted, there should appear either a positive repugnancy between the
two statutes or a clear legislative intent that the later act prescribes the only
[783 So.2d 1036]
governing rule. See Atkinson v. State, 156 Fla. 449, 23 So.2d 524 (1945).
With those standards in mind, we consider whether there is sufficient basis to determine that
chapter 403 was impliedly intended to eliminate a public nuisance cause of action authorized
under chapter 823, at least when the action relates to the pollution of the air or water. In this case,
the district court below determined that chapter 403 did not impliedly supersede the provisions of
chapter 823; therefore, according to the district court, a cause of action for public nuisance
relating to air and water pollution still remains a viable option. We agree.
First, the language of section 403.191, the cumulative remedies/savings clause, could not be
more clear. The remedies included within chapter 403 are intended to be "additional and
cumulative" to the remedies currently available (i.e., public nuisance suit under chapter 823). It
would be less than intellectually credible to conclude that section 403.191 does not mean what its
words plainly express. See Capers v. State, 678 So.2d 330, 332 (Fla. 1996) ("[T]he plain
meaning of statutory language is the first consideration of statutory construction."); St.
Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982) (same). Second, a
public nuisance may be classified as something that causes "any annoyance to the community or
harm to public health." Kirk, 726 So.2d at 826 (emphasis added); see § 823.01, Fla. Stat. (1995).
As a result, something may legally constitute a public nuisance under chapter 823 although it
may technically comply with existing pollution laws codified in chapter 403. Finally, and of
critical importance, the enactment of Florida's Right to Farm Act, section 823.14, Florida
Statutes (1995) (hereinafter "Farm Act"), provides a solid basis for the conclusion that chapter
403 was not intended to supersede chapter 823. Specifically, the Farm Act—adopted over ten
years after the 1967 enactment of chapter 403—provides a defense to a public nuisance action in
connection with agricultural operations which were "not a nuisance at the time of its established
date of operation... if the farm operation conforms to generally accepted agricultural and
management practices." § 823.14(4)(a), Fla. Stat. (1995). The Farm Act specifically states that
"[i]t is the purpose of this act to protect reasonable agricultural activities conducted on farm land
from nuisance suits." § 823.14(2), Fla. Stat. (1995). Clearly, then, in adopting a statutory
defense, the Legislature anticipated that agricultural activities would still be subject to public
nuisance actions even after the enactment of chapter 403. For these reasons, and because the
standard that implied repeals are disfavored and should only be found in cases where there is a
5
"positive repugnancy" between the two statutes or "clear legislative intent" indicating that the
Legislature intended the repeal, neither of which is present in this case, we approve the Fourth
District's holding that chapter 403 did not impliedly repeal the public nuisance provisions in
chapter 823 as they relate to the pollution of Florida's air and waters.
B. Doctrine of Primary Jurisdiction
However, having so concluded, it is now necessary to determine whether the doctrine of primary
agency jurisdiction counsels in favor of submitting Respondents' grievances through the
appropriate administrative processes.4 The doctrine of
[783 So.2d 1037]
[783 So.2d 1038]
primary jurisdiction dictates that when a party seeks to invoke the original jurisdiction of a trial
court by asserting an issue which is beyond the ordinary experience of judges and juries, but
within an administrative agency's special competence, the court should refrain from exercising
its jurisdiction over that issue until such time as the issue has been ruled upon by the agency.5
See State ex rel. Dep't of Gen. Servs. v. Willis, 344 So.2d 580, 589 (Fla. 1st DCA 1977); see also
Hill Top Developers v. Holiday Pines Serv. Corp., 478 So.2d 368, 370 (Fla. 2d DCA 1985);
South Lake Worth Inlet Dist. v. Town of Ocean Ridge, 633 So.2d 79, 87-88 (Fla. 4th DCA 1994).
The doctrine of primary jurisdiction enables a court to have the benefit of an agency's experience
and expertise in matters with which the court is not as familiar, protects the integrity of the
regulatory scheme administered by the agency, and promotes consistency and uniformity in areas
of public policy. See Key Haven Associated Enters. v. Bd. of Trustees of the Internal
Improvement Trust Fund, 427 So.2d 153, 157 (Fla.1982); Hill Top Developers, 478 So.2d at 370.
Pursuant to the doctrine, "[j]udicial intervention in the decision-making function of the executive
branch must be restrained in order to support the integrity of the administrative process and to
allow the executive branch to carry out its responsibilities as a coequal branch of government."
Key Haven Associated Enters., 427 So.2d at 157; see also Gulf Pines Mem'l Park, Inc. v.
Oaklawn Mem'l Park, Inc., 361 So.2d 695, 698-99 (Fla.1978) ("[I]f administrative agencies are
to function and endure as viable institutions, courts must refrain from `promiscuous intervention'
in agency affairs `except for most urgent reasons.'"); Bal Harbour Village v. City of North
Miami, 678 So.2d 356, 364 (Fla. 3d DCA 1996); Willis, 344 So.2d at 589. It is also important to
note that the application of the doctrine of primary jurisdiction is a matter of deference, policy
and comity, not subject matter jurisdiction. See Gulf Pines Mem'l Park, 361 So.2d at 699; St. Joe
Paper Co. v. Florida Dep't of Natural Resources, 536 So.2d 1119, 1122 (Fla. 1st DCA 1988);
Town of Ocean Ridge, 633 So.2d at 87.
Respondents' arguments with regard to primary jurisdiction are two-fold. First, they assert that
the doctrine does not apply because past agency errors have been so egregious and devastating
that resort to administrative remedies would be, essentially, futile. Alternatively, Respondents
contend that even if the doctrine of primary jurisdiction is applicable, the trial court erred in
dismissing the action with prejudice because the proper outcome would have been to suspend the
court's jurisdiction until the appropriate administrative agency addressed the issues.
As to Respondents' first position, Florida courts have consistently held that parties need not
resort to administrative remedies where agency errors are so "egregious or devastating that the
promised administrative remedy is too little or too late." Communities Fin. Corp. v. Florida
Dep't of Envtl. Regulation, 416 So.2d 813, 816 (Fla. 1st DCA 1982); see also Willis, 344 So.2d
at 590.6 Specifically, courts have set forth the following criteria which, if satisfied, would invoke
the jurisdiction of trial courts in such cases:
6
(1) the complaint must demonstrate some compelling reason why the APA (Chapter 120, Florida
Statutes) does not avail the complainants in their grievance against the agency; or (2) the
complaint must allege a lack of general authority in the agency and, if it is shown, that the APA
has no remedy for it; or (3) illegal conduct by the agency must be shown and, if that is the case,
that the APA cannot remedy that illegality; or (4) agency ignorance of the law, the facts, or
public good must be shown and, if any of that is the case, that the Act provides no remedy; or (5)
a claim must be made that the agency ignores or refuses to recognize related or substantial
interests and refuses to afford a hearing or otherwise refuses to recognize that the complainants'
grievance is cognizable administratively.
Communities Fin. Corp., 416 So.2d at 816; see also Willis, 344 So.2d at 591.
As noted earlier, Respondents in this case have relied on the "egregious or devastating agency
errors" exception to the doctrine of primary jurisdiction. In support, they alleged in their
Amended Complaint:
[Former Governor Kirk] is compelled to bring this action to continue his efforts as a private
citizen acting in the name of the State as a consequence of the government's complicity in the
offensive conduct of the [Petitioners]. Government from the local municipal level to the Federal
level has aided and abetted in the creation and maintenance of the nuisance complained of by
failing to enforce existing laws prohibiting and regulating [Petitioners'] offensive conduct and by
providing direct and indirect economic subsidies to support the [Petitioners'] offensive conduct
without which subsidies and price supports the [Petitioners'] agricultural and processing
activities would cease as economically productive. With the assistance and encouragement of the
legislature and executive branches of government, the [Petitioners'] offensive conduct has
generated huge profits for the [Petitioners] which they have used in part to preserve their special
interests at the expense of the public good through the making of enormous political
contributions. The judicial branch alone has the will, the authority, the power, and the
independence to abate this ongoing nuisance.
Respondents' Amended Complaint at 5-6.
The decision below emphasized that due to the procedural posture of the case—a review of an
order entered on a motion to dismiss—Respondents' allegations must be accepted as true; and as
such, it was improper for the circuit court to dismiss based on primary jurisdiction because
Respondents' had seemingly alleged that agency errors were egregious and devastating. See Kirk,
726 So.2d at 825. While the district court was certainly correct that in reviewing an order entered
on a motion to dismiss the allegations in the complaint must be taken as true, see Londono v.
Turkey Creek, Inc., 609 So.2d 14, 19 n. 4 (Fla.1992), the allegations in the complaint, even if
true, do not satisfy the requirements which would trigger the application of the exception.
Noticeably, the criteria outlined as a condition precedent to the application of the "egregious or
devastating agency errors" exception to the doctrine of primary jurisdiction requires some
allegation that the APA provides no remedy. No such allegation was made by Respondents. In
fact, Respondents' allegations may be appropriately characterized as little more than general and
vague allusions relating to a governmental conspiracy propelled by campaign contributions. In
short, the allegations in the amended complaint do not sufficiently set forth ultimate facts that
agency errors are egregious or devastating and that the APA provides no recourse.
Incidentally, allegations that political contributions equate to political corruption are insufficient.
See Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 108
L.Ed.2d 652 (1990) ("[T]he use of funds to support a political candidate is `speech'; independent
7
campaign expenditures constitute `political expression "at the core of our electoral process and of
the First Amendment freedoms."'"); State v. Dodd, 561 So.2d 263 (Fla.1990) (noting that
political contribution is a constitutional right and an entirely legal activity). Moreover,
Respondents' allegations of widespread corruption are conclusory and lacking in the precision
necessary for even "notice pleading." Accepting these generalized allegations facially as
sufficient would require an extension of logic to the extreme that, not only are the administrative
agencies and independent administrative law judges corrupt, but also that district court judges—
who are in the position to review the decisions of the agencies and administrative judges—are
also somehow part of this conspiracy. In addition, while states do have primary responsibilities
for environmental regulations, state action is subject to oversight by the Federal Environmental
Protection Agency. Again, if accepted as facially sufficient, the allegation of a covert conspiracy
would require application of logic that the Federal Government is also "aiding and abetting" the
alleged nuisance.
Again addressing primary jurisdiction, the simple fact that the doctrine of primary agency
jurisdiction may apply does not necessarily mean that it must be applied. As noted earlier, this is
a doctrine grounded on the notion of judicial deference and restraint. See, e.g., Hill Top
Developers, 478 So.2d at 370 ("In the circumstance where the primary jurisdiction doctrine is
applicable, the judiciary, although possessing subject matter jurisdiction to pass upon the
asserted claim, stays its hand and defers to the administrative agency in order to maintain
uniformity at that level or to bring specialized
[783 So.2d 1040]
expertise to bear upon the disputed issues."). In this case it is abundantly apparent that the
comprehensive legislative scheme established to deal with environmental concerns is aptly suited
to address the complex technical issues which may arise in this case. Specifically, the scheme
now in force extensively controls pollutant discharge, requires comprehensive permitting,
establishes air and water quality standards, and sets forth a detailed plan for the restoration of the
Everglades through the Everglades Forever Act and the Everglades Construction Project. This
legislative scheme is implemented by numerous volumes of regulations containing extensively
detailed, scientific criteria and is enforced by agencies having the required experience and
expertise, such as the DEP. These are not simple, routine matters which may be easily
understood by trial judges and juries.
It is necessary to note that the district court did not hold that primary jurisdiction was not
applicable. Rather, the Fourth District noted that "[i]f [Petitioners'] can later disprove
[Respondents'] allegations through record evidence, then the doctrine of primary jurisdiction
might serve as a basis for disposing of this case." Kirk, 726 So.2d at 825. This determination,
however, is contrary to the general rule that the burden is on "the party seeking to bypass usual
administrative channels [to] demonstrate that no adequate remedy remains available under
chapter 120." Gulf Pines Mem'l Park, 361 So.2d at 699; see also Communities Fin. Corp., 416
So.2d at 816 (noting that complainant must demonstrate some compelling reason why the APA
does not avail them in their grievance); Willis, 344 So.2d at 591(same).
We note that in reaching our conclusion today that the doctrine of primary jurisdiction counsels
in favor of having an administrative agency address the allegations presented by Respondents in
this case, we have given thorough consideration to the reasoning presented in State ex rel. Shevin
v. Tampa Electric Co., 291 So.2d 45 (Fla. 2d DCA 1974). In that case, the attorney general filed
a public nuisance action seeking to enjoin the electric company from allegedly discharging
noxious and deleterious chemicals into the air. The circuit court granted a motion to dismiss on
the basis of primary jurisdiction. On appeal, the Second District held that the doctrine of primary
8
jurisdiction was not applicable since the resolution of a public nuisance action was a judicial
matter, reasoning that public nuisance actions do not necessarily turn on technical questions. See
Shevin, 291 So.2d at 47.
It is critical to mention, however, that Shevin was decided prior to the enactment of the modern
APA which:
[S]ubjects every agency action to immediate or potential scrutiny; which assures notice and
opportunity to be heard on virtually every important question before an agency; which provides
independent hearing officers as fact finders in the formulation of particularly sensitive
administrative decisions; which requires written findings and conclusions on impact issues;
which assures prompt administrative action; and which provides judicial review of final, even of
interlocutory, orders affecting a party's interest.
Willis, 344 So.2d at 590. Indeed, "[t]he Act's impressive arsenal of varied and abundant remedies
for administrative error requires judicial freshening of the doctrines of primary jurisdiction and
exhaustion of remedies, and greater judicial deference to the legislative scheme." Id. Moreover,
while the APA indicates that nothing in it "shall be construed to repeal any provision of the
Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an
administrative
[783 So.2d 1041]
hearing," see section 120.73, Florida Statutes (1995), Florida courts have noted that the doctrine
of primary jurisdiction is one of "self-limitation" which has "evolved in marking out the
boundary lines between areas of administrative and judicial action." Florida Soc'y of Newspaper
Editors v. Florida Pub. Serv. Comm'n, 543 So.2d 1262, 1266 (Fla. 1st DCA 1989) (quoting
Willis, 344 So.2d at 589). That is, the doctrine of primary jurisdiction does not serve to divest the
circuit court of jurisdiction; it merely counsels that when issues arise which have been placed
within the special competence of an administrative body, the court should practice judicial
restraint.
Finally, Respondents also argue that, even assuming the doctrine of primary jurisdiction to be
applicable, the trial court erred in dismissing the amended complaint with prejudice.
Respondents are correct in this assertion. The doctrine of primary agency jurisdiction operates
"to postpone judicial consideration of a case to administrative determination of important
questions involved by an agency with special competence in the area. It does not defeat the
court's jurisdiction over the case, but coordinates the work of the court and the agency by
permitting the agency to rule first and giving the court the benefit of the agency's views...." Hill
Top Developers v. Holiday Pines Serv. Corp., 478 So.2d 368, 370 (Fla. 2d DCA 1985) (quoting
Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091-92 (5th Cir. 1973) (emphasis
added).) Thus, where the doctrine is applicable, the court is to suspend consideration of the
issues until these have been presented to the appropriate administrative agency. See, e.g., Hill
Top Developers, 478 So.2d at 370 (finding that application of primary jurisdiction "simply would
have required the trial court to abate the proceeding until such time as an order was issued by the
[Public Service Commission], pursuant to its powers."). Similarly, in Bal Harbour Village, the
Third District has agreed with Respondents' contention on this issue. After finding that the
doctrine of primary jurisdiction was applicable, the district court in Bal Harbour Village noted
that "[t]he dismissal is, of course, without prejudice to Bal Harbour to pursue its environmental
objections with the [DEP]." 678 So.2d at 364. In this case, however, the trial court dismissed
Respondents' complaint with prejudice. This determination is contrary to the general rule cited
above that primary jurisdiction simply requires that the court postpone or suspend judicial
9
determination of the issues. It certainly does not support, nor does it mandate, dismissal with
prejudice.
CONCLUSION
Based on the foregoing, we approve the Fourth District's holding that chapter 403 did not
impliedly repeal chapter 823. We further hold that even though a public nuisance cause of action
is still available, the doctrine of primary jurisdiction counsels in favor of having an
administrative agency with the experience and expertise to deal with the complex issues raised in
this case address Respondents' grievances; thus, we quash the district court's decision to the
extent that it is inconsistent with this opinion.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, and QUINCE, JJ., concur.
PARIENTE, J., recused.
FootNotes
1. Only Flo-Sun, Inc., Okeelanta Corp., and Sugar Cane Growers Cooperative of Florida are
Petitioners in this Court.
2. The trial court did note that although Respondents' claims under a public nuisance theory were
barred, Respondents were not precluded from bringing an individual, private right of action for
personal injury or property damage allegedly resulting from Petitioners' activities.
3. Petitioners do not seek review of the district court's holding that Respondents have standing to
bring forth this case. Moreover, an independent review of the district court's holding as to
standing appears to indicate that the Fourth District's determination was correct.
4. To be sure, although the cumulative remedies/savings clause codified as section 403.191,
Florida Statutes (1995), evinces a legislative intent to retain non-administrative remedies in the
environmental pollution arena, it does not preclude us from considering whether primary
jurisdiction—a doctrine based on judicial deference—may advise in favor of submitting
Respondents' claims for consideration to an appropriate administrative body. See, e.g., Bal
Harbour Village v. City of North Miami, 678 So.2d 356, 364 (Fla. 3d DCA 1996)(applying
primary jurisdiction based on chapter 403's regulatory scheme despite the existence of the
cumulative remedy/savings clause (i.e., section 403.191)); South Lake Worth Inlet Dist. v. Town
of Ocean Ridge, 633 So.2d 79, 90-91 (Fla. 4th DCA 1994) (applying primary jurisdiction based
on chapter 161's regulatory scheme, despite the existence of a cumulative remedy/savings clause
codified as section 161.201, Florida Statutes).
5. It is necessary to mention that although usually considered companion doctrines, the doctrines
of primary jurisdiction and exhaustion of remedies are not synonymous. In United States v.
Western Pac. R.R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), the Court explained
the distinction as follows: The doctrine of primary jurisdiction, like the rule requiring exhaustion
of administrative remedies, is concerned with promoting proper relationships between the courts
and administrative agencies charged with particular regulatory duties. Exhaustion applies where
a claim is cognizable in the first instance by an administrative agency alone; judicial interference
is withheld until the administrative process runs its course. Primary jurisdiction, on the other
hand, applies where a claim is originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires resolution of issues which, under a regulatory scheme, have
been placed within the special competence of an administrative body; in such a case the judicial
process is suspended pending referral of such issues to the administrative body for its review.
10
Accordingly, the doctrine of exhaustion arises as a defense to judicial review of an
administrative action and is based on the need to avoid premature interruption of the
administrative process; whereas primary jurisdiction operates where a party seeks to invoke the
original jurisdiction of a court to decide issues which may require resort to administrative
expertise. See generally Louis L. Jaffe, Primary Jurisdiction, 77 Harv. L.Rev. 1037 (1964).
6. This exception is applied both to the doctrine of primary jurisdiction and to the doctrine of
exhaustion of remedies. See Willis, 344 So.2d at 590.
11
KASSEL v. STATE
No. 78-2069.
382 So.2d 1354 (1980)

Sheri KASSEL, Appellant, v. STATE of Florida, Appellee.
April 30, 1980.

D. Robert Silber and Douglas J. Glaid of Kay, Roderman & Silber, Fort Lauderdale, for
appellant.
Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach,
for appellee.
ON REHEARING
PER CURIAM.
The opinion previously published herein on February 13, 1980, is withdrawn and the following
opinion substituted therefor.
[382 So.2d 1355]
Appellant seeks reversal of the trial court's order withholding adjudication and placing her on
probation for a period of one year. She pled nolo contendere to attempted possession of a
controlled substance, a misdemeanor. Appellant suggests error in the denial of her sworn motion
to dismiss and motion to suppress certain evidence. We find no merit in appellant's position as to
the motion to suppress and affirm. As to the trial court's ruling on the defendant's motion to
dismiss filed pursuant to Rule of Criminal Procedure 3.190(c)(4), we deem it appropriate to
comment upon practice under this rule as applicable herein. The rule requires that the defendant
specifically allege what the undisputed facts are and that the State specifically traverse facts
which are in dispute. The respective responsibilities of the parties are well stated in Ellis v. State,
346 So.2d 1044 (Fla. 1st DCA 1977), as follows:
Initially, the defendant in his sworn motion must allege that the material facts of the case are
undisputed, describe what the undisputed material facts are, and demonstrate that the undisputed
facts fail to establish a prima facie case or that they establish a valid defense (either an
affirmative defense or negation of an essential element of the charge). Obviously, if the
undisputed facts as alleged in the motion to dismiss do not meet such burden then any response
from the State would be superfluous, and the motion may be summarily denied. If, however, the
allegations of the motion meet the above test, then the burden shifts to the State. If the State
wishes to avoid the effect of the motion, then its traverse or demurrer, as described in Rule
3.190(d), must place a material issue of fact in dispute or establish that the undisputed facts do
establish a prima facie case. In the former instance, denial by the State under oath in its traverse
of a specific material fact alleged in the motion to dismiss requires automatic denial of the
1
KASSEL v. STATE, 382 So.2d 1354 (1980)
motion to dismiss. Conversely, those facts alleged in the motion to dismiss which are not
specifically denied by the State are, for the purpose of the motion, deemed admitted. For the
State's traverse to effectively deny a material fact alleged in the motion to dismiss, it need not be
based in whole or in part on the personal knowledge of the state attorney who files it nor must it
be buttressed by the affidavit of the victim or other witness. State v. Hamlin, 306 So.2d 150 (Fla.
4th DCA 1975). While the rule does not require the State to allege any facts which negate the
factual matters set forth in the motion to dismiss, the State must nevertheless, when it purports to
deny material facts, deny those facts with specificity. Supra at 1045.
In the instant case, the defendant's sworn motion to dismiss was rather conclusory in that she
simply stated she was legally in possession of the drug in question pursuant to a valid medical
prescription. The State's traverse is equally conclusory in that it simply denied the defendant was
legally in possession of the drug. We frankly find fault in compliance with the rule on both sides
in that both the motion and the traverse were conclusory in nature and not factually explicit.
Under these circumstances, we cannot fault the trial court for denying the motion, and the order
is thus affirmed.
AFFIRMED.
BERANEK, HERSEY and GLICKSTEIN, JJ., concur.
2
KASSEL v. STATE, 382 So.2d 1354 (1980)
S.T.N. v. STATE
No. 84-667.
474 So.2d 884 (1985)

In the Interest of S.T.N., a Child, Appellant, v. STATE of Florida, Appellee.
August 28, 1985.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm
Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for
appellee.
PER CURIAM.
Defendant, having pled nolo contendere, now attempts to appeal three issues: (1) whether the
trial court properly denied his motion to dismiss; (2) whether the trial court properly required
him to pay restitution for an unrelated crime; and (3) whether the trial court properly denied his
motion to suppress. We conclude that the trial court did not err in denying the motion to dismiss.
It did err, however, in requiring the defendant to pay restitution for an unrelated case. As for the
suppression question, we find that we must relinquish jurisdiction so that the trial court may
determine whether the legal issue is dispositive of the case.
Defendant, a juvenile, pled nolo contendere to a charge of grand theft in case 84-03-CJ (theft of a
convenience store), and the state nolle prossed a charge of grand theft in case 84-10-CJ (theft at
Peggy Stone's house) as part of a plea bargain. Defendant expressly reserved the right to appeal
the denial of the motions to dismiss and suppress. Thereafter, the court committed the defendant
to the Department of Health and Rehabilitative Services, and ordered him to pay restitution for
the crime to which he had pled nolo contendere
[474 So.2d 885]
($102.75) and the unrelated crime that had been nolle prossed ($1200.00).
We first treat the "appealability" of the order denying the defendant's motion to suppress post-
arrest statements and physical evidence. In State v. Ashby, 245 So.2d 225 (Fla. 1971), the court
approved the practice of pleading nolo contendere conditioned on the right to seek appellate
review of a legal, as opposed to a factual, issue. Brown v. State, 376 So.2d 382 (Fla. 1979),
added a further refinement and held that the legal issue had to be dispositive of the case. Also,
the court held that "as a matter of law a confession may not be considered dispositive of the case
for purposes of an Ashby nolo plea." Id. at 385. Later cases, however, have qualified this point by
holding that a confession may be dispositive of a case if so stipulated by the parties and approved
by the trial court. See Oesterle v. State, 382 So.2d 1293 (Fla. 2d DCA 1980); Jackson v. State,
382 So.2d 749 (Fla. 1st DCA 1980), aff'd, 392 So.2d 1324 (Fla. 1981).
1
S.T.N. v. STATE, 474 So.2d 884 (1985)
The record in the case at bar is, to say the least, ambiguous on whether the legal question raised
by the motion to suppress is dispositive of the case. When the defendant first announced his
intention to enter a plea of no contest, his attorney said that the defendant was reserving the right
to appeal. The trial court responded, "Well, alright but I'm —." Then the prosecutor interrupted
and said, "I don't care about that." The court said, "Great. You know, I'm only one fella. I could
be wrong so no — I don't worry about — but as far as disposing of this case at the trial level, I'll
accept your, ... your word that, ... you have — we have the plea."
The plea was entered several days later. At that time, defense counsel indicated that the
defendant was "specifically reserving the right to appeal the Court's denial of the motion to
suppress and the motion to dismiss." The court then noted for the record that defense counsel
"requests for our record to reserve any right she has to appeal the Court's ruling on any motions
that she styled and certainly we'll give you that right. You have it."
The state now argues that we cannot review the suppression issue due to the lack of an express
finding of dispositiveness. Rather than dismiss this part of the appeal, we have decided to
relinquish jurisdiction to the trial court for a period of thirty days with directions to hold a
hearing to determine whether the ruling on the motion to suppress is dispositive of the case and
to advise this court of the conclusion. If the court finds that the ruling is dispositive, the record
should be supplemented to reflect this, and we will resume jurisdiction of the appeal. Compare
Leisure v. State, 429 So.2d 434 (Fla. 1st DCA 1983), with State v. Carr, 438 So.2d 826 (Fla.
1983).
Next, we turn to the denial of the defendant's motion to dismiss. The sworn motion, filed
pursuant to Rule 3.190(c)-(4), Fla.R.Crim.P., alleged that there were no disputed material facts
and that the undisputed facts did not establish a prima facie case of guilt. As the state admits in
its brief, the denial of the motion to dismiss is dispositive and, therefore, is a proper issue on
appeal after a plea of nolo contendere. Brown v. State, supra.
The motion contends that there was no evidence of felonious intent at the time the defendant
took the paper bag with the money from the convenience store. In our view, a motion to dismiss
is not the proper vehicle for this attack. This court, as well as other district courts of appeal, have
consistently held that intent and knowledge are not proper issues to be decided on a motion to
dismiss. State v. Alexander, 406 So.2d 1192 (Fla. 4th DCA 1981); State v. Stewart, 404 So.2d
185 (Fla. 5th 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. McCray, 387 So.2d 559 (Fla. 2d DCA 1980);
State v. Rogers, 386 So.2d 278 (Fla. 2d DCA), rev. denied, 392 So.2d 1378 (Fla. 1980); State v.
Norris, 384 So.2d 298 (Fla. 4th DCA 1980); State v. J.T.S., 373 So.2d 418
[474 So.2d 886]
(Fla. 2d DCA 1979); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972).
We reversed a dismissal in State v. Alexander, supra, and said:
Since the crux of the appellee's argument rests upon the alleged absence of evidence capable of
demonstrating premeditation, it was improper to dismiss the charge against him. Intent is almost
always inferred from circumstantial evidence. As such it is not an issue to be decided on a
motion to dismiss. The trier of fact has the duty of weighing the evidence, judging the credibility
of the witnesses, and ultimately determining a defendant's state of mind.
Id. at 1194 (citations omitted); but cf. State v. Stenza, 453 So.2d 169 (Fla. 2d DCA 1984)
(applying an exception to the general rule). The record in the case at bar is replete with
2
S.T.N. v. STATE, 474 So.2d 884 (1985)
circumstantial evidence from which a jury could reasonably infer intent. Therefore, intent was
not a proper issue to be decided on a "(c)(4)" motion to dismiss.
Finally, we turn to the question of restitution for an unrelated charge. The governing principles
were set forth in Crowder v. State, 334 So.2d 819 (Fla. 4th DCA 1976), cert. denied, 342 So.2d
1101 (Fla. 1977), where we held that a trial judge was not authorized "to require the defendant to
make restitution in other unrelated cases for which the defendant has not been convicted." Id. at
820. We said, however, that "this would not prevent the court from including such conditions in
a probation order where the defendant, as part of a plea bargain, acknowledges his responsibility
for the other offenses and agrees to make restitution." Ibid. We followed this rule in Bass v.
State, 462 So.2d 572 (Fla. 4th DCA 1985), and voided a restitution provision which was not part
of the plea bargain. We reasoned that absent the defendant's acknowledgement of the theft in the
unrelated case and his agreement to make restitution, all as part of a plea bargain, the trial court
was precluded from requiring restitution for the nolle prossed charge as a condition of probation.
The record in the case at bar reveals that the defendant acknowledged his part in the theft in the
nolle prossed case (84-10-CJ) only after he was told by the trial court that he would have to pay
$1200.00 as restitution. The defendant twice tried to say something about the $1200.00, but the
trial court cut him off both times. The limited exchange between the court and the defendant
indicates that the defendant had not agreed to acknowledge responsibility or pay restitution in
case 84-10-CJ as part of the plea bargain. Because the record does not indicate that the
defendant, as part of the plea bargain, was to acknowledge responsibility for the theft in 84-10-
CJ or agree to pay restitution to Peggy Stone, the requirement to make restitution to Ms. Stone
must be reversed.
Accordingly, we affirm the denial of the motion to dismiss, and reverse that part of the trial
court's order which requires the defendant to pay restitution in case 84-10-CJ. Additionally, we
relinquish jurisdiction for thirty days for the trial court to determine whether the legal issue in the
motion to suppress is dispositive of the case.
DOWNEY, LETTS and HURLEY, JJ., concur.
3
S.T.N. v. STATE, 474 So.2d 884 (1985)
STATE v. ADDERLY
No. 81-1665.
411 So.2d 981 (1982)

The STATE of Florida, Appellant, v. Zeb ADDERLY, Appellee.
District Court of Appeal of Florida, Third District.
March 30, 1982.

Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
Michael J. Korvick, John H. Lipinski, Miami, for appellee.
Before BARKDULL and DANIEL S. PEARSON, and FERGUSON, JJ.
FERGUSON, Judge.
Adderly was charged by information with aggravated assault and unlawful possession of a
firearm while engaged in a criminal offense. He moved to dismiss, by unsworn motion, on the
grounds that the state would be unable to prove all the essential elements of the offenses because
the victim had since died from unrelated causes. The sufficiency of the charging instrument is
not challenged.
A motion to dismiss an information on grounds that there are no material issues of fact and the
undisputed facts which the state will present do not establish a prima facie case of guilt against
the defendant must conform to Florida Rule of Criminal Procedure 3.190(c)(4) requiring that the
facts be specifically alleged and the motion sworn to. See State v. Davis, 243 So.2d 587 (Fla.
1971); State v. Brooks, 388 So.2d 1291 (Fla.3d DCA 1980).
Having determined that Adderly's motion could have been made only pursuant to Rule
3.190(c)(4), supra, we hold that the trial court erred in granting the motion to dismiss because,
(1) the motion lacked specific factual allegations and (2) the motion was not sworn to by the
defendant.1 State v. Aaron, 409 So.2d 1214 (Fla.3d DCA 1982); State v. Holder, 400 So.2d 162
(Fla.3d DCA 1981).
Adderly also moved to dismiss on grounds that three police officers failed to appear for
deposition. We have repeatedly held that the state is not obliged, at pain of dismissal, to produce
witnesses for deposition. State v. Mesa, 395 So.2d 242 (Fla.3d DCA 1981); State ex rel. Gerstein
v. Durant, 348 So.2d 405 (Fla.3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla.3d DCA 1974).
Reversed and remanded for further proceedings.
1
STATE v. ADDERLY, 411 So.2d 981 (1982)
FootNotes
1. We assume that the defendant's motion was based on a perceived inability of the state to prove
that the victim was in fear of imminent violence — an essential element of assault. Though
unnecessary to a disposition of this appeal, we note that fear of imminent violence may be
inferred by the finder of fact from all the circumstances and all inferences on a motion to dismiss
are to be resolved against the defendant. As a matter of law Adderly would not, on this record,
have been entitled to a discharge even had the motion been procedurally correct. See, e.g., State
v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981); McClain v. State, 383 So.2d 1146 (Fla.4th DCA
1980), pet. for rev. denied, 392 So.2d 1376 (Fla. 1980); Gilbert v. State, 347 So.2d 1087 (Fla.3d
DCA 1977).
2
STATE v. ADDERLY, 411 So.2d 981 (1982)
STATE v. ALEXANDER
No. 80-1439.
406 So.2d 1192 (1981)

STATE of Florida, Appellant, v. William Mitchell ALEXANDER, Appellee.
November 18, 1981.
Rehearing Denied December 23, 1981.

Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for
appellant.
H. Dohn Williams, Jr., Hollywood, for appellee.
MOORE, Judge.
The state appeals the trial court's dismissal of a first degree murder indictment against the
appellee, William Mitchell Alexander. We agree that the trial court impermissibly determined
the issue of premeditation and reverse.
The appellee was indicted for first degree murder. Pursuant to Fla.R.Crim.P. 3.190(c)(4) the
appellee moved to dismiss the charges against him claiming that the death was actually the result
of an accident. In support of his motion to dismiss the appellee filed an affidavit which stated:
On the evening of April 1, 1980, I was informed by Betty DeClue's son, Toby, that he had
received a threatening telephone call while Betty and I were away from the house. Toby said the
caller threatened to come to the house and kill Betty and me. Toby was extremely upset and it
took quite awhile to calm him down. He told us that he was so afraid that after getting the call he
left the house and did not return until Betty and I came home. Prior to the shooting of Glenn
Richert, I was aware of Richert's reputation for violence. I considered him to be a violent person.
Early in the morning of April 2, 1980, Betty came to my bedroom. She was upset and said that
Richert had barged into the house and was ranting and raving about money and about being
ripped off. She said she was scared and ask (sic) me to go out and talk with him. I went to the
livingroom. Richert appeared to be drunk and high on drugs. He kept stating that he wanted his
money, that he was tired of getting ripped off, and that someone was going to get hurt if he did
not get his money. I tried to calm him down. I told he (sic) to sit down we would talk. He sat on
the couch in the livingroom still ranting and raving. At that time I saw that he had a small caliber
gun in his hand. He said that someone was going to get hurt if he did not get his money. I had
previously placed a .38 cal. pistol under a cushion on the couch within inches of where Richert
sat. I was afraid for Betty's, Toby's, and my safety because he was armed, angry, was making
threatening remarks, and was drunk and/or high on drugs. I moved toward the coffee table as if
to get some cigarettes with the intent of getting the gun under the cushion, I obtained the gun,
and Richert saw it as it was being pulled from under the cushion. He immediately grabbed the
1
STATE v. ALEXANDER, 406 So.2d 1192 (1981)
gun. When he grabbed the gun and attempted to take it from my hand, it discharged. It happened
so quickly I do not know whether the gun was cocked or uncocked. I did not intend to shoot
Glenn Richert. I was merely attempting to arm myself because he had come into my residence
armed, he was angry, he was acting irrationally, and I was concerned about his threats. Within
moments of the shot, I checked Glenn Richert to see where he had been shot in an attempt to aid
him. I checked for vital signs and found no pulse or breathing. Feeling that he was dead, I
became afraid and did not call for emergency help and/or the police. I was afraid that because I
was on probation for possession of marijuana that my probation would be revoked and I would
be sent to prison. Knowing he was dead, a decision was made to dispose of the body. Betty and I
moved the body to the kitchen in order that Toby would not see it when he left for school. The
decision to cut the throat of Richert was made after he was dead. The throat was cut in an attempt
to recover the bullet so that it could not be traced to the gun. The decision to burn the body was
made hours after Glenn Richert was dead. Richert's gun and the gun which fired the shot were
removed from Betty's residence.
The state demurred to the motion and the parties further stipulated at the hearing on the motion
as follows:
(1) The body of the deceased was in a Ford Thunderbird on April 4, 1980 in Collier County,
about 10 miles west of the Broward County line along Alligator Alley, wherein the deceased was
found burned beyond recognition. The car apparently had been set afire, (2) the prosecutor
admitted, based on the medical examiner's report, that the knife wound to the throat of the
deceased may have occurred within a short time after the shooting and prior to death, but that
this possibility was only speculative, and (3) the deposition testimony of Betty DeClue and her
son George Elmer Ellis a/k/a Toby, generally corroborated the sworn affidavit of the defendant,
these being the only persons present in the home when the shooting occurred.
Based on the above, the appellee maintains that there is no evidence from which it can be
established that he had a "premeditated design to effect the death of the person killed." Section
782.04(1)(a), F.S. (1979). Without commenting upon this assertion, with which we do not
necessarily agree, the order of the trial court must be reversed.
Since the crux of the appellee's argument rests upon the alleged absence of evidence capable of
demonstrating premeditation, it was improper to dismiss the charge against him. Intent is almost
always inferred from circumstantial evidence. As such it is not an issue to be decided on a
motion to dismiss. See State v. Rogers, 386 So.2d 278 (Fla.2d DCA 1980) and State v. J.T.S.,
373 So.2d 418 (Fla.3d DCA 1979). The trier of fact has the duty of weighing the evidence,
judging the credibility of the witnesses, and ultimately determining a defendant's state of mind.
We find that the trial court was premature in granting the appellee's motion where facts exist
from which premeditation can be reasonably determined. If such a determination is to be made, it
is for the jury to make.
REVERSED AND REMANDED.
LETTS, C.J., and HURLEY, J., concur.
2
STATE v. ALEXANDER, 406 So.2d 1192 (1981)
STATE v. ALFORD
No. 80-756.
395 So.2d 201 (1981)

STATE of Florida, Appellant, v. Curtis ALFORD, Appellee.
February 18, 1981.
Rehearing Denied April 1, 1981.

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for
appellant.
Beach, for appellee.
LETTS, Chief Judge.

This is an appeal by the State from an order granting a motion to dismiss an information
charging the defendant with possession of in excess of twenty grams of cannabis, on the grounds
that the undisputed material issues of fact failed to establish a prima facie case. We reverse.
The motion to dismiss set forth that as two officers approached a group of between eight to
twelve people including the defendant, the group dispersed and the officers "located a bag which
contained twenty-two smaller manila envelopes within it." They confiscated the bag and
contents. Thereafter the motion to dismiss continued by alleging that upon analysis the
defendant's fingerprints were found only on one of the twenty-two manila envelopes, which
envelope contained less than twenty grams of cannabis. The defense then concluded the motion
by alleging that the defendant said "it wasn't his stuff, he just bagged." From all of the foregoing
the defense took the position that the undisputed material issues of fact did not establish a prima
facie case of possession of in excess of twenty grams of cannabis in violation of Section
893.13(1)(e), Florida Statutes (1979).
[395 So.2d 202]
This motion was traversed by the State which traverse importantly alleged that it was the
defendant himself who dropped the bag rather than a question of the bag merely being "located."
This fact in and of itself appears sufficient to thwart a motion to dismiss but there are other
reasons.
Because this appeal comes from a pretrial dismissal pursuant to Florida Rule of Criminal
Procedure 3.190(c)(4) and not from a jury verdict, the question before this court is whether the
State's traverse was sufficient to place a material issue of fact into dispute or to demonstrate that
the uncontroverted facts do establish a prima facie case of guilt. Ellis v. State, 346 So.2d 1044
(Fla. 1st DCA 1977); State v. Savarino, 381 So.2d 734 (Fla.2d DCA 1980). Under this rationale,
it must be determined in the case now before us whether the facts established a prima facie case
1
STATE v. ALFORD, 395 So.2d 201 (1981)
of constructive possession, to wit, that the defendant knew of the presence of over twenty grams
of a controlled substance and had the ability to maintain control over it. In Cummings v. State,
378 So.2d 879 (Fla. 1st DCA 1979), the court maintained that whether or not a defendant has
such knowledge of the presence of a controlled substance and the ability to control it must be
inferred from the facts.
[1, 2] The cannabis was found in appellant's car driven by appellant's brother. There were four
people in the car at the time appellant's car was stopped: appellant, his brother, and two others.
All of the occupants except appellant denied knowledge of the marijuana. Appellant made no
comment. Appellant contends the facts fail to establish a prima facie case of constructive
possession, to-wit, that appellant knew of the presence of a controlled substance and had the
ability to maintain control over it. Appellants contend the facts establish joint possession of the
trunk and not exclusive possession. Whether or not appellant had such knowledge must be
inferred from the facts. Knowledge is an ultimate fact question not subject to a motion to dismiss
under Section 3.190(c), Florida Rules of Criminal Procedure. See Spataro v. State, 179 So.2d
873 (Fla.2d DCA 1975). It would have been for the jury to determine the credibility of the other
occupants as to their denials.
In other words, knowledge is an ultimate fact question not subject to a motion to dismiss under
Rule 3.190(c)(4).
Finally, we agree with the State that the motion to dismiss on its own face was insufficient to
merit dismissal. In the State's own words with which we agree:
The motion itself states that Defendant's fingerprint was found on one manila envelope taken
from a bag containing twenty-one other manila envelopes. The single envelope upon which his
fingerprint had been found contained less than twenty grams of marijuana. However, the fact that
his fingerprint was found on one of the envelopes could be probative evidence to indicate that he
possessed the other envelopes as well, especially since they were found in one single bag. Thus,
the fact that less than twenty grams of marijuana was found in the one small envelope does not
dispose of the issue of whether Defendant possessed marijuana in excess of twenty grams.
Further, his statement to [the Detective] quoted in the motion alleges that it wasn't his stuff, but
that he just bagged it. That exculpatory statement raises a credibility question which should have
been left for a jury to decide. The statement itself implicitly admits that Defendant had contact
with more than just the one manila envelope, and his denial that it was his stuff raises a question
of credibility.
In sum we believe the motion to dismiss should not have been granted.
BERANEK and HERSEY, JJ., concur.
2
STATE v. ALFORD, 395 So.2d 201 (1981)
STATE v. BAILEY
No. 4-86-1994.
508 So.2d 1268 (1987)

STATE of Florida, Appellant, v. Garth BAILEY, Appellee.
May 27, 1987.
Rehearing and Rehearing Denied July 22, 1987.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Robert S. Jaegers, Asst. Atty. Gen.,
West Palm Beach, for appellant.
Carl H. Lida of the Law Offices of Carl H. Lida, P.A., Miami, for appellee.
Rehearing and Rehearing En Banc Denied July 22, 1987.

PER CURIAM.
This is a timely appeal of a final order granting appellee's motion to dismiss a charge of
manslaughter. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure
9.140(c)(1)(A). We reverse.
The facts presented at the motion to dismiss indicate that appellee, Garth Bailey, was sitting in a
chair close to the victim, Mary Lou Young, as she cooked breakfast. Appellee stated he was
showing the victim his gun when it accidentally went off. The victim was killed by a bullet
wound to her head. There is no evidence of animosity between appellee and the victim and there
were no signs of a struggle. There were no eyewitnesses to the incident other than appellant. The
muzzle of the weapon, a 9 mm Smith and Wesson with an oversized 20 round clip, was three to
six inches from the victim's head when it was discharged. The bullet went through the victim's
right ear, exiting on the left side of her head. The gun was nearly new and there was no
contention that it was not operating properly. Appellee's attorney conceded that appellee pulled
the trigger of the gun.
As a result of this incident, appellee was charged with manslaughter. Appellee filed a motion to
dismiss the charge, arguing there was an insufficient showing of culpable negligence as a matter
of law. The trial judge stated that although he personally believed there was a showing of
culpable negligence, he felt this court's decision in Getsie v. State, 193 So.2d 679 (Fla. 4th DCA
1966), was controlling and compelled him to grant the motion.
We find it unnecessary to address the correctness of Getsie at this time, as the posture of the
present case is so clearly different from that of Getsie. In Getsie, after conclusion of a jury trial,
this court found that as a matter of law, the evidence presented was not sufficient for a jury to
conclude that the defendant was guilty of culpable negligence. The present case is an appeal of
the trial court's action on a pretrial motion to dismiss. At this stage, it is only necessary that the
1
STATE v. BAILEY, 508 So.2d 1268 (1987)
facts alleged by the state, viewing all inferences in favor of the state, constitute a prima facie
case.
To counter a Florida Rule of Criminal Procedure 3.190(c)(4) motion, the state need not produce
evidence sufficient to sustain a conviction. State v. Fuller, 463 So.2d 1252, 1254 (Fla. 5th DCA
1985). So long as the state shows the barest prima facie case, it should not be prevented from
prosecuting. State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984); State v. Pentecost, 397
So.2d 711, 712 (Fla. 5th DCA 1981). "If the defendant is thereafter entitled to a directed verdict
or acquittal, each party has been given its due." State v. Carda, 495 So.2d 912, 914 (Fla. 3d DCA
1986).
[508 So.2d 1270]
In the present case, viewing all inferences in favor of the state, we feel the facts adduced
constitute a prima facie case for the crime charged. Accordingly, we reverse.
LETTS, GLICKSTEIN and DELL, JJ., concur.
2
STATE v. BAILEY, 508 So.2d 1268 (1987)
STATE v. BETHEA
No. 81-1055.
409 So.2d 1139 (1982)

STATE of Florida, Appellant, v. Clyde BETHEA, Appellee.
District Court of Appeal of Florida, Second District.
February 10, 1982.

Jim Smith, Atty. Gen., Tallahassee and Michael A. Palecki, Asst. Atty. Gen., Tampa, for
appellant.
Larry S. Hersch of Waller & Hersch, Dade City, for appellee.
RYDER, Judge.
The state appeals from the dismissal of its information against Clyde Bethea, alleging the lower
court erred in granting appellee Bethea's motion to dismiss pursuant to Florida Rule of Criminal
Procedure 3.190(c)(4). We reverse.
The state charged appellee with carrying a concealed firearm. Appellee's motion to dismiss
alleged:
6. That the officer walked up to the side of the truck with the door open. That upon approaching
the truck, the officer could see the butt of the gun immediately. That the approaching officer
could see the gun in plain view and the gun was not under the seat but in front of the seat and the
officer said you could probably have seen the whole gun if you had looked through the front of
the truck, but he just had a side view of it from looking in the door of the truck. 7. The officer
then testified he did not have to search for the gun.
Appellee's attorney swore that the motion was true to the best of his knowledge and belief. The
state filed a motion to strike the motion on the ground that it was not sufficiently sworn to. The
court denied the motion to strike in that it did not fall within the purview of State v. Upton, 392
So.2d 1013 (Fla. 5th DCA 1981).
On the date of the hearing on the motion to dismiss, the state filed a demurrer, adding the
following facts:
1. The defendant stated to Deputy W.R. Smith of the Pasco County Sheriff's Department that he
had the pistol because he was coming back to his old town (Dade City) and had the gun for his
own protection. 2. The pistol was held up and partially concealed by the carpet/rubber matting of
the floorboard of the vehicle. 3. The pistol was not encased. 4. The pistol could not be seen at all
without opening the vehicle door and only a small portion of the butt was observable by the
deputy with the door open.
1
STATE v. BETHEA, 409 So.2d 1139 (1982)
The trial court granted the motion, holding that as a matter of law the firearm was not concealed.
The court relied on State v. Day, 301 So.2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So.2d
748 (Fla. 1975) and Porchay v. State, 321 So.2d 439 (Fla. 1st DCA 1975).
We hold that the lower court erred in granting the motion to dismiss. Florida Rule of Criminal
Procedure 3.190(c)(4) requires that the motion to dismiss be sworn to by one having direct
knowledge of the facts asserted. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); see State
v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). The attestation of counsel below, that the motion
was true to the best of his knowledge and belief, was inadequate to withstand summary
dismissal.
Additionally, the motion filed below failed to show lack of a prima facie case. The facts tend to
show that appellee had a firearm on the floor of his car. While the position and visibility of the
gun are not disputed, it was disputed whether the firearm was concealed. The disputed question
of concealment goes to the trier of fact, which should have been a jury below.
[409 So.2d 1141]
State v. Sellers, 281 So.2d 397 (Fla. 2d DCA 1973). The firearm need not be invisible to come
within the statute's meaning of concealment. Ensor v. State, 403 So.2d 349 (Fla. 1981). The
lower court thus inappropriately resolved the disputed fact of concealment in favor of appellee.
The grant of dismissal below is REVERSED and the case REMANDED for further proceedings.
SCHEB, C.J., and DANAHY, J., concur.
2
STATE v. BETHEA, 409 So.2d 1139 (1982)
STATE v. CRAMER
No. 79-1354.
383 So.2d 254 (1980)

STATE of Florida, Appellant, v. James CRAMER, Appellee.
April 9, 1980.
Rehearing Denied May 15, 1980.

Jim Smith, Atty. Gen., Tallahassee and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for
appellant.
John T. Cook, South Pasadena, for appellee.
RYDER, Judge.
The State appeals dismissal of its information for possession of cocaine, pursuant to Florida
Rules of Criminal Procedure 3.190(c)(4). The motion for dismissal alleged that small glass vials
of cocaine were found on top of a dresser in a room in which appellant was sleeping. The
residence and dresser top were shared by appellant and another. Appellant failed to preserve for
appeal any objection to the State's traverse, which added the fact that a gun found next to the
cocaine had been brandished by appellant shortly before police arrived on the scene.
We find these facts sufficient to set out a prima facie case to withstand a motion to dismiss. State
v. Savarino, 381 So.2d 734 (Fla.2d DCA 1980). Whether the State can prove constructive
possession at trial by refuting all reasonable hypotheses of innocence to this circumstantial
evidence must be decided at the close of evidence. On motion to dismiss, the State need show
only a prima facie case.
REVERSED and REMANDED for further proceedings.
BOARDMAN, Acting C.J., and CAMPBELL, J., concur.
1
STATE v. CRAMER, 383 So.2d 254 (1980)
STATE v. DIAZ
No. 92-04181.
627 So.2d 1314 (1993)

STATE of Florida, Appellant, v. Robert Juan DIAZ, Appellee.
December 10, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen.,
Tampa, for appellant.
Thomas F. Granahan, Thomas F. Granahan, P.A., Tampa, for appellee.
RYDER, Acting Chief Judge.

The state seeks review of the trial court's order granting Diaz's motion to dismiss the
bookmaking charges against him. We reverse and remand to the trial court.
Diaz filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). His motion
asserted that there were no disputed facts, and that the undisputed facts, elicited from the
depositions of all the state's witnesses, did not establish a prima facie case of guilt. The state filed
a traverse1 denying that there were no disputed facts and asserting additional material facts. The
traverse referred to facts that the motion did not address, specifically that the police had found
items used by bookmakers in Diaz's trash, that his fingerprints were on the items and that an
F.B.I. expert was prepared to testify that the items indicated a bookmaking operation.
When material factual allegations in a (c)(4) motion are denied or disputed in the traverse, the
trial court must deny the motion to dismiss. State v. Lewis, 463 So.2d 561 (Fla. 2d DCA 1985);
Fla.R.Crim.P. 3.190(d). A (c)(4) motion should only be granted where the most favorable
construction to the state would not establish a prima facie case of guilt. The proceeding is the
equivalent of a civil summary judgment proceeding. State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA
1979). It is not the trial court's function to make factual determinations in this context. State v.
Fry, 422 So.2d 78 (Fla. 2d DCA 1982).
The trial court noted that it "saw one sentence in the transcript that might arguably lead a person
to believe that Mr. Diaz ... may have been involved in some sort of bookmaking activity," but
then dismissed the charges. This observation indicates that the lower court impermissibly
weighed the evidence. The additional facts stated in the traverse, when construed in a light most
favorable to the state, are also sufficient to show a prima facie case of guilt.
Reversed and remanded.
PATTERSON, J., and COPE, CHARLES W., Associate Judge, concur.
1
STATE v. DIAZ, 627 So.2d 1314 (1993)
FootNotes
1. Diaz asserts that the traverse was not timely filed and contends that the trial court ruled it was
untimely. We do not agree. While the order on the motion to dismiss notes that Diaz filed a
motion to set aside the traverse, it does not grant this motion. Additionally, the record of the
hearing shows that the trial court considered the facts set out in the traverse.
2
STATE v. DIAZ, 627 So.2d 1314 (1993)
STATE v. EVANS
No. 80-163.
394 So.2d 1068 (1981)

STATE of Florida, Appellant, v. Anthony Jerome EVANS a/k/a Anthony Jerome Green,
Appellee.
March 4, 1981.

Michael J. Satz, State Atty., and Teresa Beazley Widmer, Asst. State Attorney, Fort Lauderdale,
for appellant.
Beach, for appellee.
GLICKSTEIN, Judge.
The information for burglary charges that appellee unlawfully entered the patio bar storeroom of
the Town and Country Motel with the intent to commit a theft. Appellee filed a sworn motion to
dismiss, stating, inter alia, that he was a guest of the motel; that shortly prior to his arrest he and
another guest went to the patio bar for a drink; that the closest restrooms cannot be seen from the
bar; that he entered the storeroom located about eight feet from the bar; that he was in the
storeroom a very short time before being discovered by the barmaid; that there are no signs on
the storage room door, indicating that it is a storeroom or that patrons are to keep out; that he has
consistently maintained he thought the storeroom was a bathroom; that the light was not on in the
storeroom and that he was looking for the light switch. To this sworn motion the state demurred,
alleging that all of the foregoing was irrelevant, immaterial or not sufficient in law to constitute
grounds for dismissal. The trial court granted the sworn motion. We reverse.
Section 810.02(1), Florida Statutes (1979), provides:
Burglary means entering or remaining in a structure or a conveyance with the intent to commit
an offense therein, unless the premises are at the time open to the public or the defendant is
licensed or invited to enter or remain. (Emphasis added).
In State v. West, 262 So.2d 457 (Fla. 4th DCA 1972), we reversed a trial court order of dismissal
following a charge for possession
[394 So.2d 1069]
of a false, forged or counterfeit note, and said:

A reading of this statute reveals that the act prohibited must be accomplished with intent. The
intent of the accused is an essential element of the offense charged. It is not usually the subject of
direct proof. It is inferred from the acts of the parties and from the surrounding circumstances.
Williams v. State, Fla. App. 1970, 239 So.2d 127; Edwards v. State, Fla.App. 1968, 213 So.2d
1
STATE v. EVANS, 394 So.2d 1068 (1981)
274; Groneau v. State, Fla.App. 1967, 201 So.2d 599; Jones v. State, Fla.App. 1966, 192 So.2d
285; Scott v. State, Fla.App. 1962, 137 So.2d 625. Being a state of mind, intent is usually a
question of fact to be determined by the trier of fact. The trier of fact has the opportunity to
observe the witnesses. From that observation, the trier of fact may determine the believability of
that witness and the weight to be given his testimony. The demeanor of the witness, his
frankness, or lack of frankness, his intelligence, his interest in the outcome of the case, and the
reasonableness of the testimony presented, in the light of all the evidence in the case, are but a
few of those factors which may play a part in making that determination.
Id. at 458.
More recently, the Second District Court of Appeal in State v. J.T.S., 373 So.2d 418, 419 (Fla. 2d
DCA 1979), cited our decision in State v. West, supra, and said:
Intent is not an issue to be decided on a motion to dismiss under Rule 3.190(c)(4), Florida Rules
of Criminal Procedure, since intent is usually inferred from the acts of the parties and the
surrounding circumstances; being a state of mind, intent is a question of fact to be determined by
the trier of fact, who has the opportunity to observe all of the witnesses. State v. West, 262 So.2d
457 (Fla. 4th DCA 1972). A proceeding under Rule 3.190(c)(4) is the equivalent of a civil
summary judgment proceeding, and as stated in State v. West, supra at 458: The trial court may
not try or determine factual issues in a summary judgment proceeding; nor consider either the
weight of the conflicting evidence or the credibility of the witnesses in determining whether
there exists a genuine issue of material facts; nor substitute itself for the trier of the fact and
determine controverted issues of fact. (Emphasis added).
See also State v. Norris, 384 So.2d 298 (Fla. 4th DCA 1980).
Sub judice, we hold that appellee's intent was an issue for the triers of fact; consequently, the
sworn motion to dismiss should have been denied. Accordingly, we reverse and remand for trial.
REVERSED and REMANDED.
DOWNEY and HERSEY, JJ., concur.
2
STATE v. EVANS, 394 So.2d 1068 (1981)
STATE v. FEAGLE
No. 90-946.
600 So.2d 1236 (1992)

STATE of Florida, Appellant, v. Richard FEAGLE, Appellee.
June 11, 1992.

Robert A. Butterworth, Atty. Gen., Cynthia Shaw and Sara Baggett, Asst. Attys. Gen., for
appellant.
Ralph N. Greene, III, Jacksonville, for appellee.
OPINION ON REHEARING
SHIVERS, Judge.
The state appealed an order of the trial court granting appellee/defendant's motions to dismiss the
four counts of the second amended information. In our original opinion, we reversed the trial
court's order. See State v. Feagle, 17 F.L.W. 562 (Fla. 1st DCA Feb. 25, 1992). On rehearing,
counsel for appellee Feagle alleged certain oversights and requested clarification of our
comments about the defense of recantation. Again, we find the state met the requirements of
Fla.R.Crim.P. 3.190(d) in its amended traverses. The inferences arising from the facts, when
viewed in the state's favor, require us to reverse the trial court's order, and remand for
reinstatement of all counts in the second amended information. State v. Boom, 490 So.2d 1370
(Fla. 2d DCA 1986); State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985); State v. Pettis, 397
So.2d 1150 (Fla. 5th DCA 1981). We withdraw our previous opinion
[600 So.2d 1238]
and substitute the following with clarifications thereof.

On June 22, 1989, Feagle gave a sworn statement to the assistant state attorney concerning the
case of State v. Ellis, Case No. 89-7317-CF. Feagle testified that his close friend Ralph Ellis and
stepfather, Johnny Boehm, had told him of their 1978 murders of three men and of the manner of
disposing of the bodies. On December 1, 1989, the defense took Feagle's deposition concerning
Ellis' incriminating statements. In the December proceeding, Feagle stated that he could not
recall either Ellis' or Boehm's telling him about the murders, and that his knowledge of their
statements was based merely on school gossip at the time of the murders. Feagle's inconsistent
June and December statements are at the heart of the instant controversy.
The four-count second amended information charged that between June 22, 1989, and December
1, 1989, Feagle committed perjury by inconsistent statements (Count I), in violation of section
837.021(1), Florida Statutes (1989), and served as accessory after the fact (Counts II through
IV), in violation of section 777.03, Florida Statutes (1989). Pursuant to Fla.R.Crim.P.
1
STATE v. FEAGLE, 600 So.2d 1236 (1992)
3.190(c)(4), Feagle filed numerous motions to dismiss the information and the state responded
with traverses.
Paragraph 2 of the "Facts" section of Feagle's Second Motion to Dismiss Count I alleges
"Defendant believed each statement he made on June 22, 1989, and on December 1, 1989, to be
true at the time he made it pursuant to Florida Statutes 837.021(4)." That statute provides that in
a prosecution for perjury by contradictory statements, "it shall be a defense that the accused
believed each statement to be true at the time he made it." In its responsive traverse, the state
specifically denied Feagle's allegation he had believed each of his statements to be true at the
time he made it. The state added: "Defendant's belief or state of mind is an essential element of
the offense and may only be inferred from his acts and surrounding circumstances and is an
ultimate question to be decided by the jury. [citations omitted]"
Fla.R.Crim.P. 3.190(d) requires denial of a motion to dismiss where the state files a traverse
which with specificity denies under oath a material fact alleged in the motion to dismiss. Fox v.
State, 384 So.2d 226, 227 (Fla. 3d DCA), pet. for rev. den., 392 So.2d 1379 (Fla. 1980); State v.
Cook, 354 So.2d 909 (Fla. 2d DCA), cert. dism., 359 So.2d 1212 (Fla. 1978). Here the state
disputed the existence of an ultimate fact: Feagle's belief that each of his statements was true at
the time he made it. We hold the traverse was sufficiently specific to apprise the trial court of the
material factual allegations in the motion to dismiss that the state was denying. See State v. Wall,
445 So.2d 646, 649 (Fla. 2nd DCA 1984); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979).
Appellee's belief, being a state of mind, is usually a question of fact to be determined by the trier
of fact, not by the trial court in a motion to dismiss. State v. Wise, 464 So.2d 1245, 1246 (Fla. 1st
DCA), pet. for rev. den., 476 So.2d 676 (Fla. 1985); State v. Stenza, 453 So.2d 169 (Fla. 2d DCA
1984); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972) (trial court may not substitute itself for
trier of fact in considering credibility of witnesses).
In the Motion to Dismiss Counts 2, 3 and 4, Feagle argued "[n]owhere in the information does
the state allege the truth or falsity of either of the statements, only that they are inconsistent with
each other." In its responsive traverse and demurrer, the state specifically denied it is necessary
to allege in the information which specific statement made by Feagle aided Ralph Ellis, and
added: "It is a question of fact whether the defendant's statement aided Ralph Ellis. Furthermore,
the defendant's state of mind must be accessed [sic] by the jury in this case and cannot be subject
to a (c)(4) Motion to Dismiss."
The trial court heard the motions to dismiss and held: "Defendant's alleged contradictory
statements are, in fact, statements
[600 So.2d 1239]
which were subsequently recanted by the Defendant and it appearing that recantation is an
absolute defense as a matter of law, it is ORDERED: The Defendant's Motions to Dismiss each
of the four (4) counts of the second amended information are granted."
Recantation is demonstrated in Carter v. State, 384 So.2d 1255 (Fla. 1980), in which the
defendant, a chiropractor, stated at deposition in a civil proceeding that he had not treated the
plaintiff prior to a certain date. Later, but prior to trial, Carter informed opposing counsel he had
in fact treated the plaintiff numerous times prior to that certain date. The state admitted the truth
of Carter's later statement, whereas the state here argued "Defendant's alleged beliefs are not the
proper subject matter of a [Fla.R.Crim.P.] 3.190(c)(4) Motion to Dismiss." The state disputed
what Feagle believed, and what his intent was, at the time of each statement. Those are questions
of ultimate fact for the jury and cannot be decided on a motion to dismiss. See State v. Farrugia,
2
419 So.2d 1118 (Fla. 1st DCA 1982); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980) (state's
traverse denying or disputing material factual allegations required denial of motion to dismiss).
Section 837.021(3), Florida Statutes (1989), provides that "[i]n any prosecution for perjury by
inconsistent statements under this section, it is not necessary to prove which, if any, of the
statements is not true." Based on that statute, the state argued that whether one or the other of
appellee's statements is true or false is immaterial and need not be proved. Feagle's belief or
intent concerning the contradictory statements is relevant and material, however, because section
837.021(1), Florida Statutes (1989), makes willfulness an element of the crime. Because the
state's sworn traverses disputed one or more material facts, the trial court erred in granting the
motions to dismiss. See Boom, 490 So.2d at 1370; Cook, 354 So.2d at 909.
Responding to the motions to dismiss, the state did not have to produce evidence sufficient to
sustain a conviction. See Fuller, 463 So.2d at 1254. At that stage of the proceedings, the trial
court is to resolve all inferences of the evidence offered to support dismissal against Feagle, and
in favor of the state, and should not make determinations as to fact issues and witness credibility.
See State v. Parrish, 567 So.2d 461, 464-65 (Fla. 1st DCA 1990), rev. den., 581 So.2d 167 (Fla.
1991). Because the record before the trial court did not show conclusively that the state could not
prove Feagle 1) willfully made contradictory statements in violation of section 837.021, Florida
Statutes (1989), and 2) failed to recant, disputes of material fact existed when the court ruled on
the motions to dismiss. Accordingly, the motions should have been denied. See Boom, 490 So.2d
at 1370; Vanhoosen v. State, 469 So.2d 230 (Fla. 1st DCA 1985); State v. Upton, 392 So.2d 1013
(Fla. 5th DCA 1981).
Feagle contends he voluntarily recanted in his December 1989 statement, thereby providing a
complete defense to the charge of perjury by inconsistent statements pursuant to Brannen v.
State, 94 Fla. 656, 114 So. 429 (1927), Carter, and State v. Godby, 498 So.2d 692 (Fla. 5th DCA
1986). The state concedes public policy favors "the correction of erroneous and even
intentionally false statements on the part of a witness," see Brannen, 114 So. at 431, but correctly
argues those decisions are distinguishable in that Carter and Brannen corrected their false
statements, and Godby corrected a misstatement, whereas the state expressly challenged Feagle's
assertion that he believed each statement in June and December 1989 to be true when he made it.
The public policy underlying the recantation defense is that it encourages a witness to correct
erroneous or even intentionally false statements, and "perjury will not be predicated upon such
statements when the witness, before the submission of the case, fully corrects his testimony."
Brannen, 114 So. at 431; Carter, 384 So.2d at 1257. By disputing and denying Feagle's
allegation that he
[600 So.2d 1240]
believed each statement to be true at the time he made it, the state raised the factual question of
whether Feagle's statement of December 1, 1989, is a correction of his prior incriminating
statement.
In State v. Snipes, 433 So.2d 653 (Fla. 1st DCA 1983), we considered the trial court's dismissal
of a perjury charge on grounds of recantation. Under oath, Snipes said two certain individuals
had burned down a building. A day later, in response to a deputy sheriff's questioning, Snipes
voluntarily admitted he had lied in implicating the two individuals. The state attorney's office
charged Snipes with perjury and the defendant moved to dismiss based on the defense of
recantation. We determined that all the elements of recantation presented by the Florida Supreme
Court in Carter, 384 So.2d at 1257-58, were present: 1) the recantation occurred promptly and
voluntarily; 2) the defendant gained nothing from the false statement; 3) no one was prejudiced
3
by the false statement; 4) judicial proceedings were not affected by the false statement; and 5)
any subsequent testimony from defendant is consistent with the recanted testimony. See 433
So.2d at 654. On that basis, we affirmed the order of dismissal. Id. at 655. In the present case,
however, the required elements of the defense of recantation are not all present. Carter; Snipes.
Appellee's counsel argues the state admitted Feagle had recanted when it charged in Counts II
through IV of the second amended information that he "did give aid to Ralph Kermit Ellis by
recanting his sworn testimony and committing Perjury in violation of Section 837.02(1), Florida
Statutes, knowing that Ralph Kermit Ellis had committed a felony." (emphasis added) The state
concedes the information is inartfully worded in that respect, since recantation of another sort is
at issue in the case sub judice. The state apparently relied on the general meaning of recant, "to
withdraw or repudiate formally and publicly," in charging Feagle with perjury based on his
repudiation of the June 1989 sworn statement. See Black's Law Dictionary 1139 (5th ed. 1979).
We are persuaded by the decisional law of this state that recantation, as a defense, has a more
limited definition requiring the recanting party not only to withdraw and repudiate, but also to
correct, the erroneous or even false statement. See Brannen, 114 So. at 431; Snipes, 433 So.2d at
654; Carter, 384 So.2d at 1257. Here, unlike the circumstances in Snipes, the state challenged
the material facts on which Feagle relied, leaving factual questions for the jury to decide.
Dismissals in criminal cases are to be cautiously granted. State v. Hargrove, 552 So.2d 281 (Fla.
4th DCA 1989). For the reasons stated above, we hold the state met its burden under
Fla.R.Crim.P. 3.190(d), see Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA), cert. den., 352
So.2d 175 (Fla. 1977), and the trial court erred in granting the motions to dismiss based on the
defense of recantation. Cook. Accordingly, we reverse the order below and remand the cause for
reinstatement of the second amended information.
BOOTH and MINER, JJ., concur.
4
10/22/2020 STATE OF FLORIDA, Plaintiff, vs. ROBERT FERNANDEZ, Defendant. County Court, 17th Judicial Circuit in and for Broward County.
16 Fla. L. Weekly Supp. 876a
Online Reference: FLWSUPP 169FERN2
Criminal law -- Driving under influence -- Evidence -- Breath test -- Sufficiency of administrative rules --
Primary jurisdiction -- Motion to suppress on grounds that Florida Department of Law Enforcement does
not substantially comply with “core policies” of implied consent statutes, in that rules promulgated by
FDLE do not ensure accuracy and reliability of breath samples, is challenge to sufficiency of existing
administrative rules, not lack of compliance with rules -- Division of Administrative Hearings is more
suitable forum and proper venue to resolve issue -- Even if court accepted jurisdiction of motion, it would
strike motion as insufficient for having been pled without specificity and materiality -- Motion to strike
granted
STATE OF FLORIDA, Plaintiff, vs. ROBERT FERNANDEZ, Defendant. County Court, 17th Judicial Circuit in
and for Broward County. Case No. 08-016064MM10A. July 7, 2009. Stacy Ross, Judge. Counsel: Assistant
State Attorney. Eric Schwartzreich, for Defendant.
ORDER GRANTING STATE'S MOTION TO
STRIKE DEFENDANT'S MOTION TO SUPPRESS
FOR LACK OF SUBSTANTIAL COMPLIANCE
THIS CAUSE having come before this Court upon the State's Motion to Strike the Defendant's Motion to
Suppress for Lack of Substantial Compliance, and the Court having considered the Defendant's Motion, the
State's Motion to Strike, and the Defendant's Reply to the State's Motion to Strike, having heard arguments on
the same, and having reviewed the applicable case law, and being fully advised in the premises,
ORDERS AND ADJUDGES as follows: The State's Motion to Strike the Defendant's Motion to Suppress for
Lack of Substantial Compliance is GRANTED. Accordingly, although this Court does possess subject matter
jurisdiction as to the Defendant's Motion to Suppress for Lack of Substantial Compliance, this Court maintains
that the Administrative Courts of the Division of Administrative Hearings would be a more suitable forum and
the more proper venue to resolve this rules challenge.
Facts
On 7/6/08, the defendant, Robert Fernandez, was arrested in Broward County, and subsequently charged with,
Driving Under the Influence in violation of Fla. Stat. 316.193. Pursuant to his arrest, the defendant submitted to
a breath test on an Intoxilyzer 8000 breath testing instrument, serial number 80-000786, maintained by the
Broward Sheriffs Office.
The Defendant filed a Motion to Suppress the breath test results, contending that the Florida Department of Law
Enforcement (hereinafter, “F.D.L.E.”) did not substantially comply with the “core policies” of the Florida
Implied Consent statutes in that the rules promulgated by the F.D.L.E. do not ensure the accuracy or reliability of
the Defendant's breath sample. In support of this argument, the Defendant cites to five general examples: (1) that
F.D.L.E. Forms 36, 37 and 39 are insufficiently written, allowing operators and agency and department
inspectors multiple opportunities and too much discretion to keep an instrument in compliance even after
successive failed tests, (2) that the Intoxilyzer instrument is unable to detect and subtract realistic amounts of
volatile organic compounds (specifically, but not limited to, acetone) which leads to inaccurate and unreliable
results, (3) that agency and department inspectors intentionally interrupt the power to instruments during
inspections in order to conceal failing inspections, (4) that the methods and procedures used by inspectors to test
for mouth-alcohol during inspections are not in substantial compliance with F.D.L.E. rules, and (5) that the
F.D.L.E. rules offer no direction or guidance to an operator concerning a control test failure or result outside of
tolerance during a subject breath test. As a result of these insufficiencies, the Defendant requests, for various
reasons, that the breath test results in this case be excluded from evidence.
www.floridalawweekly.com/flwonline/?page=showfile&fromsearch=1&file=../supfiles/issues/vol16/876a.htm&query="16+Fla.+L.+Weekly+Supp.+876A… 1/10
The State filed a Motion to Strike and Response to the Defendant's Motion asserting that, because the Defendant
challenges the existing rules promulgated by the F.D.L.E., and that these established rules are and were
insufficiently promulgated (to substantially comply with the “core policies” of the Florida Implied Consent
Law), the Defendant's motion is a rules challenge. The State also asserts that concurrent jurisdiction exists
between this Court and the Administrative Courts under the Division of Administrative Hearings (hereinafter,
“D.O.A.H.”), and that the most proper venue for the Defendant's motion is the Administrative Courts under the
D.O.A.H.
Analysis
This Court finds that the Defendant's Motion to Suppress is based on the insufficiency of existing F.D.L.E. rules,
not for lack of compliance of with F.D.L.E. rules. As the State argues, the Defendant's motion does not cite to
any factually specific violations of substantial compliance in the instant case. Rather, the defendant uses generic
examples in support of his argument that the F.D.L.E. has failed to substantially comply with the core policies of
the Florida Implied Consent Law. Although the examples and reasons listed in the Defendant's motion may be
examples of lack of substantial compliance with F.D.L.E. rules, such examples are factually specific and do not
necessarily apply to the facts of the instant case. Indeed, the Defendant has failed to plead his motion with
materiality and specificity as to the facts of the instant case.
Florida Rules of Criminal Procedure 3.190(h) provides for judicial review of a suppression motion's legal
sufficiency prior to its consideration by a court. Subsection (2) specifically states that “[e]very motion to
suppress evidence shall state clearly the particular evidence sought to be suppressed, the reason for suppression,
and a general statement of the facts on which the motion is based. Fla. R. Crim. P. 3.190(h)(2). A motion to
suppress is patently defective where it is not supported by specific reasons for the suppression. See State v.
Butterfield, 285 So.2d 626 (4th DCA 1973); State v. Hernandez, 841 So.2d 469 (3d DCA 2002); State v. Gay,
823 So.2d 153 (5th DCA 2002); Dean v. State, 430 So.2d 491 (4th DCA 1984); Chapman v. State, 446 So.2d
1186 (4th DCA 1984); Herring v. State, 394 So.2d 433 (3d DCA 1980); State v. Cannizzo, 9 Fla. L. Weekly
Supp. 640a (17th Jud. Cir. 2002). A boilerplate motion is facially defective, fails to comply with Rule 3.190, and
must be stricken. Hernandez, 841 So.2d 469. Where a defendant's motion fails to allege specific facts the State is
prejudiced in its preparation and response to the defendant's claims. See Butterfield, 285 So.2d 626. When a
motion does not comply with Rule 3.190, the moving party fails to meet its burden. See Gay, 823 So.2d 153;
Black v. State, 383 So.2d 295 (Fla. 1980). The Courts have held that these rules are not mere technical
procedures, reversing and remanding suppression orders simply for lack of adherence to them. See Butterfield,
285 So.2d at 627.
Florida Courts have also addressed the type of evidence defendants must show in order to prove that the State
has not substantially complied with F.D.L.E. rules and Florida's Implied Consent Statute in the collection of
breath alcohol samples. The Defendant must allege specific facts that show the State did not substantially
comply. “To challenge the test results, the defendant must show that the State failed to substantially with
F.D.L.E. rules, or by competent scientific evidence, and not speculation, that there was a procedures followed by
the State that calls the scientific accuracy and reliability of the blood [or breath] tests results into question. State
v. Sandt, 5 Fla. L. Weekly Supp. 811 (6th Jud. Cir. 1998); see also D.H.S.M.V. v. Farley, 633 So.2d 69 (5th DCA
1994). It is only upon a sufficient and specific showing by the defendant that the burden may lawfully shift to
the State to show substantial compliance, or that any non-compliance would be insubstantial. See State v. Arnold,
7 Fla. L. Weekly Supp. 160a (9th Jud. Cir. 1999); State v. Griese, 5 Fla. L. Weekly Supp. 137a (9th Jud. Cir.
1997); Farley, 633 So.2d 69.
In addition, the Defendant's motion clearly states his argument -- that the F.D.L.E. did not substantially comply
with the “core policies” of the Florida Implied Consent statute to ensure the accuracy and reliability of subject
breath test samples. It is not the individual law enforcement agency personnel or instrument that the Defendant
alleges fails to substantial comply with a rule or rules, but F.D.L.E.'s entire regulatory scheme for breath testing.
Therefore, it is clear to this Court that, the Defendant challenges the current rules as promulgated by the F.D.L.E.
as being insufficient. That being the case, the specific issue before this court is the insufficiency of the
administrative rules as promulgated by the F.D.L.E.
A Defendant may attack the validity of breath test results. State v. Bender, 382 So.2d 697 (Fla. 1980); State v.
Veilleux, 635 So.2d 977 (Fla. 1994). When the attack is based on the lack of substantial compliance with
F.D.L.E. rules, a criminal court can exercise jurisdiction and hear the matter. However, when the attack is based
on the insufficiency of administrative rules, as in the instant case, a criminal court may exercise jurisdiction and
hear the matter. Veilleux, 635 So.2d 977; State v. Miles, 732 So.2d 350 (Fla. 1st DCA 1999).
This Court has inherent power to do all things reasonably necessary for the administration of justice within the
scope of its jurisdiction, subject to, or not in conflict with valid existing laws and constitutional provisions. State
v. Anderson, 267 So.2d 8 (Fla. 1972); Veilleux, 635 So.2d at 978; State v. Hasetey, 10 Fla. L Weekly Supp. 942a
(Fla. 17th Cir. 2003). Administrative agencies in the State of Florida, such as the F.D.L.E., are governed in
accordance with the provisions of the Administrative Procedures Act (hereinafter “A.P.A.”), as codified in
Chapter 120 of the Florida Statutes. Hasetey, 10 Fla. L. Weekly Supp. 942a (Fla. 17th Cir. 2003). Thus, the
administrative rules being challenged by the Defendant fall within the scope of the APA pursuant to Fla. Stat. §
120.52(15). The A.P.A. established D.O.A.H., which has express jurisdiction to address administrative rules
challenges such as those presented in the instant case. As set forth below, this Court finds that its inherent
powers are subject to the A.P.A., a valid existing law with express jurisdiction to address administrative rules
challenges. See State v. Barbuto, 9 Fla. L. Weekly 787b (Fla. 17th Cir. 2002); Hasetey, 10 Fla. L. Weekly Supp.
942a.
The Defendant relies on the Miles case , in which the court chose to hold hearings on the issue of the adequacy
of a rule that dealt with the preservation of blood samples. In Miles, the trial court found that the rules failed to
provide for the collection, storage or transportation of blood samples drawn pursuant to the statute. In essence,
no rules existed at the time for collection and preservation of these blood sample -- a challenge to the lack of a
rules or rules. Nonetheless, the court in Miles chose to exercise its jurisdiction over the issues presented.
However, neither the decision in Miles, nor any other cases cited by the Defendant stand for the proposition that
this court must exercises jurisdiction over the issues presented. And, as discussed below, are factually
distinguishable from the issues presented by the Defendant and the facts of the instant case.
This Court, for the reasons stated in this order, and unlike the Miles, Veilleux and other courts, chooses to
exercise its discretion with regards to these issues and defers the Defendant and these issues to the
Administrative Courts under the D.O.A.H.
Application of the Veilleux Opinion
The State contends that the Veilleux decision stands for the proposition that this Court has subject matters [sic]
jurisdiction in this case, and further, that there is no requirement that a defendant exhaust administrative
remedies before a criminal court has jurisdiction. The State is correct. In Veilleux, the Florida Supreme Court
articulated that there is no requirement that a defendant exhaust administrative remedies before bringing the
matter or issue to the trial court. Veilleux, 635 So.2d at 978. However, in Veilleux, as in its companion case
Berger, 605 So.2d 488 (2d DCA 1992), the State challenged that the County Court did not have subject matter
jurisdiction to hear the matters brought before it.
In this case, the State has not challenged the Court's subject matter jurisdiction, nor has the State asserted that the
Defendant must exhaust his administrative remedies. Rather, the State asserts that there is concurrent jurisdiction
between this Court and the Administrative Courts and the D.O.A.H. Thus, the State offers that this Court should
exercise its jurisdiction and defer this matter to the Administrative Courts and the D.O.A.H.
It is important to note that at no time has the Defendant has challenged the jurisdiction of the Administrative
Courts and the D.O.A.H., either in his motion, reply or oral arguments. As such, it is undisputed that there is
concurrent jurisdiction between this Court and the Administrative Courts and D.O.A.H.
Although Veilleux stands for the proposition that a defendant does not have to exhaust administrative remedies
before bringing these matters to the trial court, this Court fails to find any interpretation of Veilleux, or any of the
other cases cited to by the Defendant, that require that this Court must exercise its jurisdiction over the issues.
The exercise of this Court's jurisdiction on these issues is discretionary, not mandatory. There is no interpretation
of Veilleux indicating that this Court must exercise jurisdiction and hear these matters. As a result, this Court
must then determine what should be done in this situation where there is concurrent subject matter jurisdiction.
The Doctrine of Separation of Powers
As noted above, this Court is well aware that “[e]very court has inherent powers to do all things that are
reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to or not in
conflict with valid existing laws and constitutional provisions.” Anderson, 267 So.2d 8 (Fla. 1972); Veilleux, 635
So.2d at 978; Hasetey, 10 Fla. L. Weekly Supp. 942a (Fla. 17th Jud. Cir. 2003). In the instant case, there exists
such valid existing laws and constitutional provisions.
Article II, Section 3 of the Florida Constitution addresses the doctrine of separation of powers. The doctrine state
that the powers of the state government shall be divided into legislative, executive, and judicial branches. No
person belonging to one branch shall exercise any powers appertaining to either of the other branches unless
expressly provided for. Furthermore, “the role of the ultimate interpreter of the law may not be used by the
courts to interfere with the legitimate exercise of power reserved by the Florida Constitution for other branches
of the government.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519
(1978).
The development of rules for the regulation and administration of alcohol breath testing is a matter vested in the
F.D.L.E.'s discretion -- a member of the executive branch -- by the Florida legislature. Therefore, as this court
and the F.D.L.E. are members of different branches of the Florida government, judicial and executive,
respectively, there is no reason for this court to fail to abide by a doctrine that is deeply rooted in both the
Florida and U.S. Constitutions.
The Doctrine of Primary Jurisdiction
The doctrine of primary jurisdiction mandates that “when a party seeks to invoke the original jurisdiction of a
trial court by asserting an issue which is beyond the ordinary experience of judges and juries, but within an
administrative agency's special competence, the court should refrain from exercising its jurisdiction over that
issue until the issue has been ruled upon by the agency.” Flo-Sun Inc. v. Kirk, 783 So.2d 1029, 1036-37 (Fla.
2001). Furthermore, the primary jurisdiction doctrine counsels that a court should not substitute its judgment for
that of an agency when dealing with a subject matter that is vested within the agency's expertise and discretion.”
Kirk v. U.S. Sugar Corp., 726 So.2d 822 (Fla. 4th DCA 1999). The doctrine also “protects the integrity of the
regulatory scheme administered by the agency, and promotes consistency and uniformity in areas of public
policy.” Id. at 1037; see also Barbuto, 9 Fla. L. Weekly Supp. 787b (Fla. 17th Jud. Cir. 2002). Thus, the need for
unnecessary subsequent litigation for a particular rule challenge is negated. Hasetey, 10 Fla. L. Weekly Supp.
942a (Fla. 17th Jud. Cir. 2003).
This is not to say that this Court does not have the experience or expertise to hear such matters; far from it. This
Court is well suited and experienced to hear such matters. However, this Court realizes that it is the F.D.L.E.'s
sole responsibility to oversee, determine and promulgate, and regulate the rules it finds necessary to ensure the
accuracy and reliability of alcohol breath testing in the State of Florida and that it is the Administrative Court's
and the D.O.A.H.'s responsibility to hold and conduct hearings on the rules promulgated by administrative
agencies such as F.D.L.E. Because the Administrative Courts and the D.O.A.H. conduct hearings on, and govern
the rules of the all the administrative agencies that determine the requirements for and necessity of all these
rules, it can be said that they would have more experience and expertise in dealing with administrative rule
challenges. Thus, the Administrative Courts and the D.O.A.H. is a more suitable forum and the more proper
venue for these matters and issues.
As the Court in Kirk noted, “primary jurisdiction applies where a claim is cognizable in the courts, and comes
into play whenever enforcement of a claim requires resolution of issues which, under a regulatory scheme, have
been placed within the special competence of an administrative body; in such a case the judicial process is
suspended pending referral of such issues to the administrative body for its review.” Kirk, 783 So.2d at 1038 n.5.
Thus, according to the doctrine, judicial intervention must be restrained in order to support the integrity of the
administrative process and to allow the executive branch to carry out its responsibilities as a co-equal branch of
government. Id at 1037.
In applying the doctrine of primary jurisdiction, a court, while possessing subject matter jurisdiction over an
issue, stays its hand and defers to the administrative agency in order to allow for uniformity at that level or bring
specialized expertise to bear on the disputed issues. Hill Top Developers v. Holiday Pines Service Corporation,
478 So.2d 368, 370 (Fla. 2nd DCA 1985). The doctrine is relevant when a court and an administrative agency or
court have concurrent jurisdiction over the same matter, but there is no statutory provision coordinating the work
of the court and agency, like in the present matter. In these cases, the doctrine works to postpone judicial
consideration of the issues to the administrative determination of important questions by an agency with special
competence in that area in question. Id. at 370. Thus, the doctrine of primary jurisdiction operates, not to defeat
a court's jurisdiction over a case, but coordinates the work of the court and the agency by allowing the agency to
rule first, and thereby giving the court the benefit of the agency's views. Id.
The Administrative Courts and the D.O.A.H.
Will Provide a More Efficient and Effective
Forum for the Defendant's Rules Challenge
Although this Court agrees with both the State and Defendant, that it has subject matter jurisdiction to hear the
issues before it, this Court chooses to exercise its discretion, deferring the matter, and directing the parties, to the
Administrative Courts and the D.O.A.H. Florida Statute § 120.56 was specifically created and intended for rules
challenges such as those presented here. The A.P.A. provides the framework for an efficient means of
challenging the promulgation or sufficiency of administrative rules.
The Administrative Courts and D.O.A.H. further serves as more adequate forum given its expertise in the area
presently at issue. The defense motion challenging the sufficiency of the existing F.D.L.E. rules scheme is
ideally suited for the Administrative Courts and the D.O.A.H. because alleged problems complained of in the
Defendant's motion, as well as the problems with the F.D.L.E. rules, affect not only cases in this County, but the
Counties of entire State of Florida as well. See State v. Jacobus, Case 290028-X (Fla. 11th Jud. Cir. 2009).
The challenge to the sufficiency of the current F.D.L.E. rules apply to all breath testing cases in the State of
Florida. A hearing as to the sufficiency of the most, if not all, of the existing F.D.L.E. rules would require great
preparation and cost to both parties, including preparation, expert witness fees and travel expenses. Such
hearings would yield an inexorable and unnecessary burden on judicial time, schedules and resources, something
the courts in this County have already witnessed first-hand while attempting to coordinate dates of hearing in
these matters. Further, one can easily envision the issuance of a variety of opinions at the County and Circuit
court level, requiring the F.D.L.E. to tweak its rules in a manner to suit the idiosyncrasies of each particular court
or jurisdiction.
However, if this matter is heard by the Administrative Courts and D.O.A.H., “the holding would foster the need
for a uniform resolution of this challenge and therefore, prevent much needless litigation since an appeal of that
order would be binding upon other courts in the State.” State v. Gonzalez, 15 Fla. L. Weekly Supp. 480a (Fla.
11th Jud. Cir. 2007) (Appellate case No. 07-353AP) (cert. denied, 403464X, slip op. Fla. 3d DCA, March 2,
2009). Furthermore, the State, in its duly filed motion, has agreed to be bound by any decision made by the
Administrative Courts and the D.O.A.H. on this matter.
These concerns were previously addressed in State v. Smith, where the court noted that “[t]o require every
defendant to hire experts and re-invent the wheel on each such challenge imposes a great burden and hardship on
both the defendant and the State -- an unnecessary hardship when the legislature has provided for a more far-
reaching procedure that insures uniform adjudication for all defendants in the same posture state-wide.” State v.
Smith, 37 Fla. Supp. 2d 116 (Fla. 9th Jud. Cir. 1989). The court in Smith further noted that an Administrative
Court under the A.P.A. would have been able to complete a hearing on any petition filed by the defendant and
the defendant would have had an opportunity for judicial review pursuant to Fla. Stat. § 120.68.
The Framework of the A.P.A. Allows the Case to
Proceed Through the Administrative Courts
and the D.O.A.H. in an Efficient Manner
and Promotes Sound Public Policy
As described by the State, the procedural framework of the A.P.A. will allow the case to proceed through the
Administrative Courts and the D.O.A.H. in an efficient manner. This would prevent any prejudice to the
defendant based on due process violation or affect a defendant's right to a speedy trial. In Veilleux and State v.
Berger, 605 So.2d 488 (Fla. 2d DCA 1992), both cited to by the Defendant, although a speedy trial was waived,
it is clear that impingement on the defendant's right to a speedy trial was a substantial concern in making a
determination as to whether to require the defendants to exhaust their administrative remedies in criminal cases.
In the instant case, there is no speedy trial concern because the Defendant has already waived his speedy trial
rights. However, even if speedy trial rights concerns were to be present, the specific procedures and restriction
within the A.P.A. ensure that a petitioner's claim can be handled efficiently and effectively to ensure that any
such concerns would be protected.
According to the procedures set forth in the A.P.A., after the filing of a petition, a hearing would be held, and a
decision rendered within a total of 70 days. See Hasetey, 10 Fla. L Weekly Supp. 942a (Fla. 17th Jud. Cir. 2003)
(Within 10 days after reception of the petition, an Administrative Law Judge is assigned and then required to
hold a hearing within 30 days thereafter, and must render a decision on the petition within 30 days following the
hearing.). Given these procedural safeguards and time restraints, it is clear that this matter can be handled before
the Administrative Courts and D.O.A.H. in an efficient manner without prejudice to the Defendant's due process
or speedy trial rights.
This process is illustrated in. State v. Lanoue, 6 Fla. L. Weekly Supp. 301a (State of Florida, Division of
Administrative Hearings, 1998, in which the Defendant challenged, among other issues, the statements and
policies regarding the analysis and approval of the solutions and/or sources of solutions used to test the accuracy
of evidentiary breath test instrument used in the Implied Consent Program. In Lanoue, the defendant filed a
petition with the Administrative Courts on October 12, 1998. A notice of hearing date October 19, 1998
scheduled the case for final hearing on November 19, 1998. The case was heard on November 19, 1998 and
concluded on November 23, 1998. The order from the Division of Administrative Hearing was issued on
December 24, 1998. The D.O.A.H.'s ruling was then appealed to the First District Court of Appeal and came to
be heard on December 29, 1999. See Lanoue v. Florida Dept. of Law Enforcement, 751 So.2d 94 (1st DCA
1999) (rehearing denied, 2000). Thus, within a period of little more than two months, the issues brought by the
defendant were filed, scheduled, heard and ruled upon by the D.O.A.H., then appealed and ruled upon within the
following year.
By the same token, a review of the history of the Bodden case reveals that if this Court were to exercises its
jurisdiction and hear the rules challenge presented, what would be expected is a series of appeals to the Circuit
Courts, District Courts and eventually the Supreme Court, with similar or conflicting rulings from other Circuit
and District Courts, over a span of years, creating a backlog of cases until a final resolution is presented. In State
v. Bodden, the defendant was arrested on August 7, 2000 for Driving Under the Influence. On February 7, 2001,
the defendant filed a motion in Limine regarding the defendant's urine test and results because no regulatory
criteria had been promulgated to insure the reliability of the urine testing procedures. The court held a hearing on
the motion on April 6, 2001. One June 29, 2001, the court entered an order granting the defendant's motion in
Limine regarding the defendant's urine test and results and certified the a question of great public importance to
the Second District Court of Appeal as to whether the F.D.L.E. was required to adopt rules regarding the
collection and preservation of urine samples obtained by law enforcement. On October 30, 2002, the Second
District Court of Appeal entered an opinion affirming the county court's order. See State v. Bodden, 872 So.2d
916 (2d DCA 2002). The State filed a motion for rehearing on November 12, 2002, and the Second District
granted the State's motion for certification on March 28, 2002. While the Bodden appeal to the Florida Supreme
Court was pending, the case of State v. Pierre, 854 So.2d 231 (5th DCA 2003) was decided by the Fifth District
Court of Appeal on August 29, 2003. In Pierre, the Fifth District held that urine tests need not be approved by
the F.D.L.E. and certified conflict with the First District's decision in Bodden. On April 15, 2004, the Florida
Supreme Court decided State v. Bodden, 877 So.2d 680 (Fla. 2004), more than three years after the filing of the
defendant's original motion.
The backlog of driving under the influence cases based on the breath test results of a defendant would be
expected to be far greater than those based on a defendant's urine sample. Therefore, based on the timeframe of
the hearing and appellate process, a backlog of hundreds, if not thousands, of DUI breath test cases would be
created, similar to that in the Bodden cases described above. Good judicial policy and sound public policy
require that such a motion challenging the sufficiency of existing F.D.L.E. rules be heard by the Administrative
Courts and the D.O.A.H. so that a uniform resolution is obtained within a timely and efficient manner.
Defendant Has the Burden of Showing Non-Compliance
by Preponderance of the Evidence
The Defendant's Motion bears the same defense burden as a Motion in Limine. State v. Parker, 44 F. Supp. 2d 38
(Fla. 5th Jud. Cir. 1990). “Inasmuch as Defendant's Motion to Suppress is a Motion in Limine, Defendant has
the burden of proving its allegations by a preponderance of the evidence.” State v. Baldwin, 6 Fla. L. Weekly
Supp. 97c (13th Jud. Cir. 1998) (citing to State v. Phillips, 3 Fla. L Weekly Supp. 740 (Fla. 17th Jud. Cir. 1996);
State v. Gerena, 4 Fla. L. Weekly Supp. 51 (Fla. 13th Jud. Cir. 1996). Therefore, the Defendant's burden of proof
in this Motion is by a preponderance of the evidence when addressing the issue of substantial compliance.
Moreover, “[where] the defendant is challenging the propriety of rules or lack thereof, the defendant faces a
presumption of correctness that F.D.L.E. has correctly determined that no rules are necessary. . . .” See Misterka
v. State, 3 Fla. L. Weekly Supp. 293, 294a (15th Jud. Cir. 1995); citing to Florida East Cost Railway Co. v. King,
158 So.2d 523 (Fla. 1963); State v. Barbuto, 9 Fla. L. Weekly Supp. 787b (17th Jud. Cir. 2002); State v. Hasetey,
10 Fla. L. Weekly Supp. (17th Jud. Cir. 2003). Also, as a general rule, an existing rule created by an
administrative agency is presumed to be valid. Chevron v. Natural Resources Defense Council, 467 U.S. 837
(1984); see also Fla. Stat. § 120.56(3).
The State notes in its response that the Defendant seeks to challenge the sufficiency of the current F.D.L.E. rules
for not covering every situation as laid out by the Defendant in his motion. As the Second District held in Wissel
v. State, 691 So.2d 507 (Fla. 2d DCA 1997), “we likewise conclude that appellants attack based on lack of rule
or regulation to cover every step of the testing procedures for breath test instruments is not only speculative and
theoretical, but also hyper-technical.” The Court agrees that it is not possible to cover every situation or aspect of
breath testing instruments, inspections or breath testing. While the State must do a competent job in establishing
the reliability of its testing and methods of ensuring scientific accuracy and reliability of breath test results, it
need not be a perfect one. State v. Friedrich, 681 So.2d 1157 (Fla. 5th DCA 1996). The F.D.L.E. rules as
established are presumed valid.
With regards to the claim that the Intoxilyzer instrument cannot detect and subtract volatile organic compounds
at realistic levels, the Defendant has provided a voluminous biding of experiment results from an unknown
Intoxilyzer. It concerns the Court that these results are merely test result slips with hand written indications of
certain chemical compounds and that it contains no corresponding report. These test slips do not indicate the
serial number of the Intoxilyzer instrument used in this experiment, and are very illegible, rendering them almost
useless.
Although the Court is aware that much to do has been made about the actions of Sandra Veiga and Pat Nanz, it
would be impossible for F.D.L.E. to control the actions of every person under its control at every moment. The
actions of these individuals noted by the Defendant may apply in certain situations where it can be shown that
these individuals failed to substantially comply with F.D.L.E. rules. However, such a showing would be case and
fact specific, something the Defendant has not shown to be the case here.
The Defendant's motion must be plead with specificity and materiality, not generally. Here, the Defendant must
show that Ms. Veiga actually and intentionally interrupted the power supply to the instrument, that Ms. Nanz
conducted an inspection using methods that do not substantially comply with F.D.L.E. rules, the results of which
the State intends to introduce into evidence, that a retest without a proper explanation occurred during an agency
inspection prior to or subsequent to the Defendant's breath test in the instant case or that during his breath test a
control test result was outside the tolerance levels. If the Defendant fails to do so, he has not pled his motion
with specificity and materiality, but generally, as in the instant case.
Assuming arguendo that these issues were plead with the requisite specificity and materiality to the facts of the
instant case, the Court is not convinced that such allegations rise to the level of not being in substantial
compliance with F.D.L.E. rules. According to the F.D.L.E. Forms 36 and 39, Step 5, Alcohol Free
Subject/Mouth Alcohol Test, an inspector must “[r]inse mouth with mouth alcohol solution,” before providing a
breath sample. Obviously, the purpose of this testing procedure is to determine whether the Intoxilyzer
instrument is able to detect any residual alcohol present in a subject's mouth. If a subject has any residual alcohol
present in their mouth, lips or oral cavity, the instrument will detect it and notify the inspector or operator of the
error. According to the allegations set forth by the Defendant, Ms. Nanz rubbed the mouth alcohol solution on
her lips and gums before proceeding with the test. It is this method that the Defendant claims does not fall within
the F.D.L.E. rules requiring the inspector to “rinse.” The Court disagrees. The purpose of the test is to check for
any amount of residual mouth alcohol that could falsely increase a subject's breath test result or result in an
invalid test or breath sample. As long as such a situation is created, the testing method is valid. Here, it appears
that the method employed by Ms. Nanz does just that. In fact, if the instrument is able to read even the most
minimal amount of alcohol on a subject's lips or gums, it would appear that the instrument is working in the
defendant's favor so as to preclude a falsely increased breath test result. It seems that the issue regarding the
testing of mouth-alcohol during agency or department inspections is nothing more than an insubstantial
difference between the approved techniques and the actual testing method used. As noted in Fla. Stat. §
316.1932(b)(2), such insubstantial differences do not render the test of test results invalid. Based on the
information provided by the Defendant, the method employed by Ms. Nanz appears to be epitome of substantial
compliance, if not strict compliance.
Likewise, with regards to the issue of intentional power interruption during allegedly failing inspections, the
Defendant does not argue, nor does the Court believe, that the Intoxilyzer instrument has any ability or means by
which it can automatically repair itself. Therefore, if an instrument was failing an inspection, the Court does not
find that interrupting the power to the instrument would cause the instrument to give any readings it would not
have otherwise given. The instrument either works or it does not; interrupting the power supply to the instrument
would not affect the accuracy or reliability of the instrument.
While the Defendant has made lengthy arguments and attached several voluminous exhibits to its motion, sheer
length and volume of a motion and its exhibits does not mean that the motion is pled with specificity and
materiality. This Court finds that the Defendant's Motion is pled generally, without a factual basis to the instant
case. While this Court acknowledges that some of the Defendant's arguments may be raised, on their own, if the
facts of a case give rise to specific nature of the allegations, such has not been shown to be the case here. If the
Defendant is able to show the Court that the issues raised are relevant, material and specific to the facts of the
instant case, the Court may later elect to hear such issues in an evidentiary proceeding.
However, an order to strike this motion is appropriate in the instant case as a hearing without a factual or legal
ground pled will likely result in the expenditure of significant funds on both parties to entertain the court with
testimony that is not shown to be lawfully relevant, material, or necessary to a sufficiently pled motion. If the
Defendant cannot plead adequate legal and factual grounds, why should this Honorable Court endure or compel
the State to prepare for such a technical and expensive hearing on the merits? According to the law presented in
this motion, the Court shall not hold such a hearing without facial sufficiency, particularly if objected to by the
other party, even if the entire criminal defense bar in Florida of the 17th Circuit supports such a large spectacle.
Previous Court Decisions in Similar Matters
In order to understand the positions of both sides, and because the issues before this Court revolve around its
discretion to hear or defer the issues before it, a review of the pertinent previous decisions regarding similar
issues is necessary. The Defendant cites to State v. Robertson, 604 So.2d 783 (Fla. 1992) for the proposition that
a defendant can challenge an agency's regulations themselves as being scientifically unsound. However, in
Robertson, the issue was whether blood samples that were analyzed by a doctor who did not have a HRS (the
predecessor to the F.D.L.E.) permit to analyze blood samples, but was supervised by a doctor who had a HRS
permit, was performed in accordance with the, then approved, methods. The Supreme Court held in the negative.
Their rationale was clear. Under the statute at the time, the blood sample tests must have been performed by an
individual possessing a valid permit. There was no reference to substantial compliance in connection with the
licensing clause and the statute did not contemplate that the test could be conducted under the supervision of one
who possesses the permit. Therefore, while the Robertson case supports the Defendant's argument that he may
attack the scientific soundness of the regulations, the facts of Robertson indicate that he must, at the very least,
show some materiality to the case at hand.
Likewise, in State v. Rochelle, 609 So.2d 613 (4th DCA 1992), the State was using a variant form rather than the
promulgated form for checking equipment -- an actual violation of the then promulgated rules. The Court found
that the use of different forms, reflecting different monthly maintenance procedures, for testing breath-testing
equipment was a denial of equal protection and would preclude the State's use, in a criminal trial, the test results
from the breath-testing instruments so tested.
And as discussed earlier, the cases of State v. Veilleux, 635 So.2d 977 (Fla. 1994), its companion case State v.
Berger, 605 So.2d 488 (2d DCA 1992), as well State v. Reiser, 584 So.2d 141 (5th DCA 1991), all cited to by the
Defendant, involve matters where the State either challenged the subject matters jurisdiction of the court to hear
the matters, or argued that the defendant should not be allowed to attack the validity of the rules adopted by the
agency in a criminal proceeding but must exhaust their administrative remedies first.
The Defendant also reminds this Court that several County and Circuit Courts of this Circuit chose to hear a
similar rules challenge a few years ago in the “tap water” cases. However, in those cases the State stipulated that
there was, in fact, an actual and specific rules violation -- the use of tap water, instead of distilled water as
required by F.D.L.E. rules, during agency inspections. It is because the Courts chose to hear these issues that the
Defendant argues the Court should choose to hear the issues presented in the instant case.
The Defendant is correct that this court should take into consideration the previous decisions of courts regarding
these issues. In fact, the State cites to several cases from the County and Circuit Court of this and other Circuits
in which the court either struck or denied a Defendant's motion on similar issues. See State v. Barbuto, 9 Fla. L.
Weekly Supp. 787b (17th Jud. Cir. 2002) (Judge Lisa Trachman), State v. Hasetey, 10 Fla. L. Weekly Supp. 942a
(17th Jud. Cir. 2003) (Judge Dale Ross), State v. Creo, Case No. 06-010725MMI0A (17th Jud. Cir. 2007) (Judge
Kathleen Ireland), State v. Ulhoa, 15 Fla. L. Weekly Supp. 462a (17th Jud. Cir. 2008) (Judge Michael Kaplan),
State v. Gonzalez, 15 Fla. L. Weekly Supp. 480a (11th Jud. Cir. 2007) (cert. denied by 3d DCA, March 2, 2009),
and State v. Jacobus, Case No. 290028-X (11th Jud. Cir. 2009).
Most recently, on April 8, 2009, the Fourth District affirmed the 17th Circuit Court's decision in Ulhoa. See
Ulhoa v. State, 6 So.3d 709; see also Ulhoa, 15 Fla. L. Weekly Supp. 462a (17th Jud. Cir.). In Ulhoa, the Circuit
Court heard arguments regarding a similar issue of the insufficiency of F.D.L.E. rules. The Court held that
“[t]raditionally, absent exception, a party must exhaust its administrative remedies before seeking judicial review
of an administrative rule.” The Court found that the defense had presented none of the accepted exceptions,
thereby striking and declining to hear the defendant's motion.
This Court finds no reason not to follow the persuasive opinions by the courts of this Circuit, as well as those of
other Circuits, the recently denial of certiorari by the Third District Court of Appeal, in State v. Gonzalez, and
the Fourth District Court of Appeal's recent decision in Ulhoa v. State, in which similar arguments were made.
Conclusion
The appropriate steps to ensure the consolidation, consistency and uniformity in these matters is to defer
jurisdiction of these matters to the Administrative Courts and the D.O.A.H. For the foregoing reasons, which are
best described in State v. Barbuto, State v. Hasetey, as well as the recent decisions in State v. Creo, State v.
Ulhoa, State v. Gonzalez, and State v. Jacobus, this Court declines to hear the issues presented on the
Defendant's Motion regarding the insufficiency of the F.D.L.E.'s existing rules, finding that the Administrative
Courts and the D.O.A.H. is the more suitable forum and more proper venue to resolve these issues.
Accordingly, the Defendant has not challenged the subject matter jurisdiction of the Administrative Courts and
the D.O.A.H. Therefore, while this Court does have subject matter jurisdiction as to the Defendant's Motion
based on the insufficiency of the F.D.L.E. rules, this Court maintains that the Administrative Courts and the
D.O.A.H. would be a more suitable forum the more proper venue to resolve these insufficiency of rules
challenges. Accordingly, even if this Court decided to hear the issues in this case, it would still find that the
Defendant's Motion is insufficient, having been pled without specificity and materiality, and would, likewise,
strike the Defendant's motion.
WHEREFORE, based on the foregoing, it is ORDERED AND ADJUDGED that the State's Motion to Strike
and Response to the Defendant's Motion to Strike Defendant's Motion to Suppress for Lack of Substantial
Compliance is hereby GRANTED.
***
www.floridalawweekly.com/flwonline/?page=showfile&fromsearch=1&file=../supfiles/issues/vol16/876a.htm&query="16+Fla.+L.+Weekly+Supp.+876… 10/10
STATE v. FORDHAM
No. 84-361.
465 So.2d 580 (1985)

STATE of Florida, Appellant, v. Dan FORDHAM, Appellee.
District Court of Appeal of Florida, Fifth District.
March 14, 1985.

Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for
appellant.
Jack Singbush, P.A., Ocala, for appellee.
DAUKSCH, Judge.
This is an appeal from an order granting a motion to dismiss a criminal charge. Florida Rule of
Criminal Procedure 3.190(c)(4) provides that a criminal charge will be dismissed if an accused
files a sworn motion stating the facts as set out in the motion are undisputed, that they are the
facts upon which the charge is based and that those facts do not establish a prima facie case of
guilt.
As has been said clearly and often, the accused must swear to the motion. State v. Upton, 392
So.2d 1013 (Fla. 5th DCA 1981); Fla.R.Crim.P. 3.190(c)(4). Equally clear is that the trial court
should not decide or reconcile disputed issues of fact raised by the state's traverse or inherent in
the defendant's motion. State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985); State v. Sheppard,
401 So.2d 944 (Fla. 5th DCA 1981); State v. Pettis, 397 So.2d 1150 (Fla. 5th DCA 1981); State
v. Upton; State v. Featherolf, 388 So.2d 38 (Fla. 5th DCA 1980); State v. Fort, 380 So.2d 534
(Fla. 5th DCA 1980). All questions and inferences from the facts are resolved in favor of the
state, like the non-moving party in a civil summary judgment proceeding. State v. Fuller; State v.
Patel, 453 So.2d 218 (Fla. 5th DCA 1984); State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA
1981); State v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981).
Here the motion was not sworn to and the affidavit which appellee signed saying "To the best of
my knowledge, based upon my reading of the above depositions, the facts and matters alleged in
said motion are true and correct since they derive from the sworn statements of depositions in
this cause" is not sufficient to satisfy the rule requirements. This declaration is nothing more than
a non sequitur. Additionally, the oath of the accused must be based upon his own knowledge of
the facts and not "upon information and belief." State v. Upton.
The order is reversed and this cause remanded for trial.
REVERSED.
ORFINGER and SHARP, JJ., concur.
1
STATE v. FORDHAM, 465 So.2d 580 (1985)
STATE v. FORT
No. 78-2100/T4-223.
380 So.2d 534 (1980)

STATE of Florida, Appellant, v. Jack E. FORT, Appellee.
February 27, 1980.

Jim Smith, Atty. Gen., Tallahassee, Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, and
Phillip Havens, Asst. Atty. Gen., Daytona Beach, for appellant.
C.A. Van Hook, III, Deland, for appellee.
COBB, Judge.
The state appeals an order dismissing an Information charging appellee, the defendant Fort, with
second degree grand theft of a heater. Fla.R.App.P. 9.140(c)(1)(A). The
[380 So.2d 535]
dismissal was based on a motion by the defense, filed pursuant to Rule 3.190(c)(4), Florida Rules
of Criminal Procedure, which was traversed by the state.
Fort's motion alleged that the state had no evidence establishing ownership of a certain heater in
the victim, Mahaffey, Fort's employer, or in another person. In support of the allegation, Fort
contended the evidence would show: (1) a heater similar to Mahaffey's was sold by Fort to David
Jordan; (2) Fort worked for Mahaffey for several years and was constructing for Mahaffey a
heater similar to the one which Fort sold to Jordan; (3) that Mahaffey observed that one of his
heaters, similar to the one Fort was working on and the one sold to Jordan, was missing; (4) that
subsequent to the sale of the heater to Jordan, Mahaffey saw the heater on Jordan's property and
claimed it, stating it looked like his heater; (5) that Mahaffey could not state absolutely that the
heater he claimed at David Jordan's was his heater, but only that it looked like his heater; (6) that
Mahaffey stated that Fort has made at least one heater on piecework on his own time; (7) that the
heater Fort was building that Mahaffey says was the same one Fort stole had no serial number on
it and that it was impossible to identify it without a serial number with absolute certainty; (8) that
Mahaffey could not possibly identify the parts to the heater as being his parts; (9) that there was
no way for Mahaffey to really know whether Fort may have constructed that particular heater
that was at Jordan's property on his own or at some other location; (10) that the transfer of a
heater was made by Fort in broad daylight to Jordan's nursery across the street from Mahaffey's;
(11) that based on all the state's evidence and taken in a light most favorable to the state, there
existed a reasonable hypothesis of innocence as a matter of law and the state's case was not
worthy of jury consideration.
In its written traverse, the state denied that there were not disputed material facts and that the
undisputed facts failed to establish a prima facie case, and went on to specifically state facts
1
STATE v. FORT, 380 So.2d 534 (1980)
indicating guilt: that during October, 1977, Mahaffey noticed that a heater which was being
assembled at his direction by Fort was not in the packing shed where Fort had been working on it
the day before; that when Mahaffey asked Fort where it was Fort replied that it had been moved
to a back shed, but Mahaffey discovered that the heater was not in the back shed; that when
Mahaffey again confronted Fort, Fort said Mahaffey would have to check with Fort's brother;
that Fort had not been directed to move the heater to the back shed, since all of the necessary
tools were in the packing shed, and Fort never explained why the heater would have been
moved; that the heaters being assembled by Fort was homemade and especially designed for
Mahaffey's greenhouses; that Mahaffey bought all the parts and equipment for the heaters, and
Fort was to receive $100.00 per heater for building them; that at 6:00 P.M. on October 30, 1977,
two witnesses observed Fort and his brother bring a heater, which matched the description of the
one which was ultimately found to be missing from, Mahaffey's nurseries across the street to
Jordan's nursery, using Mahaffey's front-end loader; that Jordan would testify that he purchased
the heater brought to his nursery by Fort, not knowing it belonged to Mahaffey; that Fort
installed the heater in Jordan's greenhouse on November 4, 1977, at 4:00 P.M., and was then paid
$800.00; that on November 8, Mahaffey went to Jordan's nursery, was shown the heater sold and
installed by Fort, and positively identified the heater as his own, due to its design and flaw in its
construction, which he recognized; that Jordan immediately returned the heater to Mahaffey; and
that Fort failed to report to work as expected on November 5 and was never seen again by
Mahaffey.
The trial court granted the motion on the basis that the evidence showing the heater belonged to
Mahaffey rather than to Fort was circumstantial and, as such, susceptible of a reasonable
construction indicating innocence. In other words, the trial court found that the state failed to
present a prima facie case.
[380 So.2d 536]
The state argues, and correctly so, that the evidence of Fort's guilt was direct, not circumstantial.
Even if the evidence were entirely circumstantial, it did not support any reasonable hypothesis of
innocence. No facts were presented to the trial court indicating the heater in question belonged to
Fort prior to its sale to Jordan; at no time did Fort claim that he built the heater using his own
parts on his own time.
Under Florida law, the identity of stolen property may be established by circumstantial evidence.
McDonald v. State, 56 Fla. 74, 47 So. 485 (1908); Thompson v. State, 58 Fla. 106, 50 So. 507
(1909); Kearson v. State, 123 Fla. 324, 166 So. 832 (1936). Moreover, in considering a "(c)(4)"
motion, the trial judge may not try or determine factual issues nor consider the weight of
conflicting evidence or the credibility of witnesses in determining whether there exists a genuine
issue of material fact. State v. West, 262 So.2d 457 (Fla. 4th DCA 1972). If material factual
allegations of a (c)(4) motion are denied or disputed in the traverse, denial of the motion to
dismiss is mandatory. Fla.R.Cr.P. 3.190(d); State v. Cook, 354 So.2d 909 (Fla. 2d DCA 1978);
cert. dismissed, 359 So.2d 1212 (Fla. 1978); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977),
cert. denied, 352 So.2d 175 (Fla. 1977); State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975).
The dismissal by the trial court is reversed, and this cause remanded with directions to reinstate
the Information.
ORFINGER and SHARP, JJ., concur.
2
STATE v. FORT, 380 So.2d 534 (1980)
STATE v. GEE
No. 92-03918.
624 So.2d 284 (1993)

STATE of Florida, Appellant, v. James E. GEE, Appellee.
August 6, 1993.
Rehearing Denied September 16, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa,
for appellant.
Angelo M. Ferlita, Ferlita, Nutter & Rosello, P.A., Tampa, for appellee.
PER CURIAM.
In this aggravated battery prosecution, the state appeals the trial court's order granting
defendant's motion to dismiss. We reverse.
[624 So.2d 285]
The facts of this case, as related in defendant's motion, are not in dispute. A crowded barroom
confrontation culminated with defendant striking the victim with a single blow to the right side
of his face, causing him to fall to the floor. Though the blow itself did not break any bones or
knock out any teeth, the victim, upon falling down, suffered a broken neck and complete
paralysis from either striking his head on a stage or being kicked in the head by an unknown
person.
Defendant was charged with aggravated battery, a specific intent crime requiring the intent to
cause great bodily harm, permanent disability or permanent disfigurement. § 784.045(1)(a)1, Fla.
Stat. (1991); Knott v. State, 573 So.2d 179, 180 (Fla. 2d DCA 1991). We conclude that in this
case a jury question existed over whether defendant had the requisite specific intent. As this
court noted in State v. Stenza, 453 So.2d 169 (Fla. 2d DCA 1984), intent is generally a jury
question that in most instances cannot be ascertained by direct evidence but only inferred and is
therefore not properly determined on a motion to dismiss.
Reversed and remanded for proceedings consistent herewith.
FRANK, C.J., and SCHOONOVER and PATTERSON, JJ., concur.
1
STATE v. GEE, 624 So.2d 284 (1993)
STATE v. GRIFFIN
No. 87-492.
512 So.2d 1087 (1987)

STATE of Florida, Appellant, v. Robert Nolan GRIFFIN, Appellee.
September 16, 1987.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen.,
Tampa, for appellant.
James Marion Moorman, Public Defender and John T. Kilcrease, Jr., Asst. Public Defender,
Bartow, for appellee.
THREADGILL, Judge.
The state seeks review of the trial court's order granting Griffin's motion to
[512 So.2d 1088]
dismiss a charge of possession of cocaine pursuant to Florida Rule of Criminal Procedure

3.190(c)(4). We reverse.
The motion alleged that the cocaine was found in a hotel room which had been rented by
someone other than Griffin and that two other guests had been allowed to leave the room
uncharged. The motion also alleged that, although Griffin was in joint occupancy of the room,
there was no evidence of cocaine on his person or of his knowledge of the presence of cocaine in
the room. The state traversed the motion alleging that the cocaine was in plain view.
At the hearing on the motion, the following evidence was presented. Ronald Grace, co-owner of
the hotel, had requested police assistance with the occupants of the room for a disturbance and an
unpaid phone bill. Mr. Pete had registered for the room, but four people, including Griffin, were
staying in the room. Officer Flint responded to the call and was informed by Grace that Griffin
had run up the unpaid phone bill. Upon entering the room, Officer Flint observed items of drug
paraphernalia, including two plastic baggies with the corners trimmed off, cocaine residue, two
or three razor blades, and a metal item used to keep rock cocaine. Four people, including Griffin,
and an infant were in the room when Flint entered. Griffin stated he had been living in the room.
The court granted the motion to dismiss. The state appealed.
An accused may be convicted of possession of a controlled substance under the theory of
"constructive possession" where drugs are found on the premises in the joint possession of the
accused and the accused has knowledge of the presence of the substance and the ability to
maintain control over it. Giddens v. State, 443 So.2d 1087 (Fla. 2d DCA 1984). Such facts will
not be inferred, but must be established by proof consisting either of evidence establishing actual
knowledge by the accused or evidence of incriminating statements and circumstances from
1
STATE v. GRIFFIN, 512 So.2d 1087 (1987)
which a jury might lawfully infer knowledge. Giddens; Taylor v. State, 319 So.2d 114 (Fla. 2d
DCA 1975); Spataro v. State, 179 So.2d 873 (Fla.2d DCA 1965); Frank v. State, 199 So.2d 117
(Fla. 1st DCA 1967).
The state's traverse stating that cocaine residue was in plain view, together with incriminating
statements by Griffin, raise the issue of Griffin's knowledge of the presence of the drug and his
ability to control it. These were ultimate facts which cannot be appropriately resolved by a
motion to dismiss. Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979).
The order of dismissal is reversed and the cause remanded for further proceedings.
HALL, A.C.J., and UPCHURCH, Jr., FRANK D., Associate Judge, concur.
2
STATE v. GRIFFIN, 512 So.2d 1087 (1987)
STATE v. HART
No. 95-1188.
677 So.2d 385 (1996)

STATE of Florida, Appellant, v. William HART, Appellee.
July 17, 1996.
Rehearing and/or Clarification and/or Certification Denied August 20, 1996.

Michael J. Satz, State Attorney, J. Scott Raft, Assistant State Attorney, Fort Lauderdale; Robert
A. Butterworth, Attorney General, Tallahassee; and Joan Fowler, Assistant Attorney General,
West Palm Beach, for appellant.
Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort
Lauderdale, for appellee.
GROSS, Judge.
Appellee William Hart was charged with corruption by threat under section 838.021(1) as
enhanced by section 775.0851, Florida Statutes (1995). He moved to dismiss the enhancement
portion of the charge under Florida Rule of Criminal Procedure 3.190(c)(4). After hearing
testimony at an evidentiary hearing conducted under Rule 3.190(d), the trial court granted the
motion and dismissed that part of the charge based on section 775.085.
[677 So.2d 386]
A rule 3.190(c)(4) motion to dismiss is akin to a civil motion for summary judgment. See State v.
West, 262 So.2d 457 (Fla. 4th DCA 1972). The motion is decided only on the undisputed facts.
In considering the evidence, the court must draw all inferences in favor of the state and against
the defendant. E.g., State v. Pastorius, 419 So.2d 1137, 1139 (Fla. 4th DCA 1982). The trial
court may neither weigh conflicting evidence nor pass on the credibility of witnesses nor
determine disputed issues of fact. West, 262 So.2d at 458. Motive and intent are states of mind
usually inferred from the conduct of the parties and the surrounding circumstances; they are
questions for the trier of fact that are generally not appropriate for a motion to dismiss. State v.
J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979), overruled on other grounds by, D.K.D. v. State, 470
So.2d 1387 (Fla. 1985); Sanders v. Wausau Underwriters Ins. Co., 392 So.2d 343, 345 (Fla. 5th
DCA 1981); Burke v. Harbor Estates Assocs., Inc., 591 So.2d 1034, 1037 (Fla. 1st DCA 1991)
(intent is issue of fact); see School Bd. of Leon County v. Hargis, 400 So.2d 103, 107 (Fla. 1st
DCA 1981)(motivation ordinarily question of fact).
Viewed in the light most favorable to the state, the evidence was that a Caucasian traffic officer
stopped Hart for a traffic violation. Believing Hart to be under the influence of alcohol, the
officer requested that a DUI task force officer take over the investigation. Although unhappy
with the stop, Hart directed no personal attacks at the Caucasian officer.
1
STATE v. HART, 677 So.2d 385 (1996)
The officer who responded to handle the DUI inquiry was Barry Whitfield, an African American.
Hart warned him that if Whitfield arrested him he would sue and get Whitfield's job. After
conducting field sobriety tests, Officer Whitfield placed Hart under arrest and handcuffed him.
Hart then screamed at Whitfield, "I'm going to get you, nigger! I'm going to find out where you
live. I've got connections. I'm going to hurt your family, and hurt you and take you out." Hart
warned the officer that his address was easily accessible, so it would be easy to locate the
officer's home. Hart detailed the events that would follow, including a cross burning in
Whitfield's yard "with plenty of rounds." While Whitfield drove him to the breath testing facility,
Hart repeatedly referred to the officer as a "nigger" in conjunction with numerous threats and
references to previous attacks on police. Hart indicated that an instructor at the police academy
"hates niggers," inferring that the law enforcement hierarchy shared his opinions. At the breath
testing facility, he repeated his intent to kill Whitfield, imitating the sound of a gun being fired.
During transport from the breath testing facility to the Broward Sheriff's Office, Hart continually
used the slur "nigger" in conjunction with threats of violence and intimidation.
The trial court based its dismissal upon State v. Stalder, 630 So.2d 1072 (Fla.1994). In Stalder
the supreme court construed section 775.085 as applying only to "bias-motivated crimes," which
it defined as "any crime wherein the perpetrator intentionally selects the victim because of the
victim's `race, color, ethnicity, religion, or national origin.'" Id. at 1077. The court noted that this
interpretation of the statute was consistent with the legislative intent to "discourage criminal acts
directed against groups that have historically been subjected to prejudicial acts." Id. at 1076. The
supreme court distinguished a bias motivated crime from crimes committed for some reason
other than prejudice, but which evidence prejudice during their commission:
For example, A beats B because of jealousy, but in the course of the battery calls B a racially
derogatory term. The targeted conduct here—the expression of bias— is related to the underlying
crime in only the most tangential way: The expression and crime share the same temporal
framework, nothing more.
Id. A crime which shows prejudice only during its commission and not in its genesis falls outside
the section 775.085 proscription.
To qualify criminal conduct for sentencing enhancement under section 775.085, Stalder does not
require that prejudice be the sole motivating factor for the underlying crime. The supreme court
cited with approval Dobbins v. State, 605 So.2d 922 (Fla. 5th DCA 1992), affirmed, 631 So.2d
303 (Fla.1994), which stated that an enhanced penalty was
[677 So.2d 387]
appropriate under the statute if a battery was motivated "in whole or in part" because of religious
prejudice. State v. Stalder, 630 So.2d at 1076. The essence of criminality under section 775.085
is that prejudice be a significant factor in bringing about the commission of the underlying crime,
i.e., but for the racial enmity, the underlying crime would not have occurred. To use the Stalder
analogy quoted above, jealousy could be one motive for A's battery of B, but the prosecution
could demonstrate that the beating was planned and implemented because of the victim's race, a
showing which would trigger sentencing enhancement under section 775.085. Prejudice is no
less odious, no less worthy of deterrence, because it mixes with jealousy to become the impetus
for a criminal act. This view comports with Stalder's First Amendment analysis, since it focuses
the factfinder's inquiry on the prejudiced conduct in selecting a victim and not on a defendant's
offensive language.
Under the state's best case, the "intent or purpose" of Hart's threats were to influence Officer
Whitfield to "unarrest" him, giving rise to a violation of section 838.012(1), Florida Statutes
2
STATE v. HART, 677 So.2d 385 (1996)
(1995). Comparing Hart's treatment of the Caucasian officer with that of the African American
officer, and considering the quantity, detail, and venom of Hart's racist comments, a factfinder
might also conclude that prejudice was a significant factor inducing him to make the threats, thus
justifying a section 775.085 enhancement. Hart might defend this case on two levels: that his
words were merely drunk talk without the intent to influence the officer and that race was not a
significant motive in his selection of Whitfield as the target of his threats. The issues in this case
are ones of fact to be resolved by the trier of fact upon proper instruction from the court. See
Richards v. State, 643 So.2d 89, 91 (Fla. 3d DCA 1994). For these reasons, resolution of this
case on a rule 3.190(c)(4) motion to dismiss was erroneous.
GLICKSTEIN and STONE, JJ., concur.
FootNotes
1. Section 775.085(1) mandates that the penalty for a crime be enhanced "if the commission of
such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity,
religion, sexual orientation, or national origin of the victim."
3
STATE v. HART, 677 So.2d 385 (1996)
STATE v. HOLDER
No. 80-1902.
400 So.2d 162 (1981)

The STATE of Florida, Appellant, v. Clifford HOLDER, Appellee.
June 23, 1981.

Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Michael Zelman, Asst. Public Defender, for
appellee.
Before HENDRY, NESBITT and BASKIN, JJ.
PER CURIAM.
The state appeals the dismissal of an information charging the defendant with burglary and grand
theft. We have jurisdiction.1
Pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, the defendant filed a motion
to dismiss the charges, which read as follows:
THE DEFENDANT, CLIFFORD HOLDER, by and through his undersigned attorney, moves
this Honorable Court to dismiss the Information against the Defendant. As a basis for this
motion, the Defendant alleges that there are no material disputed facts and the undisputed facts
do not establish a prima facie case of guilt against the Defendant.
The undisputed facts are as follows:
1. On July 2, 1980, Officer Stubllefield saw the Defendant in a walkway between two buildings
with a box in his hands. 2. The officer yelled for him to halt and the Defendant left the scene. 3.
The Defendant was stopped about half a block away by another officer. 4. The Defendant was
placed under arrest for Burglary and Grand Theft. 5. There are no other undisputed facts.
WHEREFORE, the Defendant requests that this Honorable Court dismiss the Information
against the Defendant.
The state moved to strike the motion on the basis that it was not made in good faith, not properly
sworn to, and omitted substantial material facts. At a hearing on the motion and in a demurrer
filed pursuant to Rule 3.190(d), the state proffered additional facts which allegedly established a
prima facie case against the defendant. Specifically, the state showed that the defendant and two
other men were observed in an alleyway carrying a box and a television set by police responding
to a burglar alarm in a business located next to the alleyway. When ordered to halt, the men
dropped the items and fled. The state also alleged that upon further investigation the police
discovered a hole approximately four to five feet in diameter knocked in an outside wall of the
business. The president of the firm then arrived on the scene, identified the merchandise, and
1
STATE v. HOLDER, 400 So.2d 162 (1981)
confirmed that no one had given the three men permission to enter the premises or remove
property. After the hearing, the defendant's motion was granted.
On this appeal, the state contends that the motion to dismiss was legally insufficient and should
have been summarily denied by the trial court because it was not sworn to by the defendant, and
failed to either demonstrate that the undisputed material facts did not amount to a prima facie
case of guilt against the defendant or establish a valid defense. We agree and reverse.
Rule 3.190(c)(4) expressly requires that a motion to dismiss be sworn to, contemplating that the
declarant aver upon oath that the facts alleged are true. The motion sub judice was not sworn to
by the defendant himself, rather, the defendant's attorney swore that the facts therein were true
"to the best of his knowledge." Clearly, the facts set forth in the motion could not possibly have
been within the personal knowledge of the defendant's attorney unless he happened to have been
on the scene of the alleged crime. In State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981), the
court analyzed this requirement of Rule 3.190(c)(4) in a similar context and concluded that
[a] motion to dismiss under this rule should be summarily denied when it is not sworn to by the
defendant who, by taking the oath, thus subjects himself to the penalties of the perjury if his
recitation of undisputed facts is false.
[400 So.2d 164]
Id. at 1016 (emphasis supplied). See State v. Love, 143 Fla. 883, 197 So. 534 (1940); State v.
Shull, 390 So.2d 1233 (Fla. 5th DCA 1980); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA
1979); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla. 1977);
State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). Accord State v. Kemp, 305 So.2d 833 (Fla. 3d
DCA 1974) (where this court affirmed the dismissal of an information after first observing that
the motion was signed and sworn to by the defendant's attorney, but that the state had failed to
object to the defect).
Rule 3.190(c)(4) also requires that the movant demonstrate that the undisputed facts do not
establish a prima facie case of guilt or, alternatively, that they establish a valid defense to the
charges. State v. Torres, 375 So.2d 889 (Fla. 3d DCA 1979); State v. Sedlmayer, 375 So.2d 887
(Fla. 3d DCA 1979); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, supra.
The defendant's bald assertion that "the undisputed facts do not establish a prima facie case of
guilt" does not satisfy this requirement. See State v. Torres, supra; State v. Sedlmayer, supra.
Based on the defendant's failure to personally swear to the facts alleged and his failure to either
refute a prima facie case of guilt or establish a valid defense to the charges, we conclude that the
motion to dismiss should have been automatically denied by the trial court.
Even aside from the procedural shortcomings of the defendant's motion, however, we find that
the state's demurrer sufficiently raised substantial material issues of fact not addressed in the
defendant's motion which would constitute a prima facie case of guilt, thus necessitating 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 proceedings.
FootNotes
2
1. § 924.07(1), Fla. Stat. (1979).
3
STATE v. HUGGINS
No. KK-487.
368 So.2d 119 (1979)

STATE of Florida, Appellant, v. Jonathan Chester HUGGINS, Appellee.
March 9, 1979.

Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellant.
Robert Staats, Panama City, for appellee.
MILLS, Judge.
The State appeals from an order granting Huggins' motion to dismiss its information on the
ground that the State did not respond with sufficient specificity. The State contends the trial court
erred. We agree and reverse.
Although the State's traverse is not a model pleading; although there is no authority for the
allegation, "has no knowledge"; nevertheless, the State did specifically deny under oath the
material facts alleged in the unsworn motion to dismiss. Florida Rule of Criminal Procedure
3.190(d) provides that a motion to dismiss shall be denied if the State's traverse with specificity
denies under oath the material facts alleged in the motion.
However, the Court's order dismissing the information is based on the State's failure to respond
with sufficient specificity. Apparently the court was of the opinion that the State was required to
disclose in its traverse the ultimate facts upon which it would rely at trial in order to withstand
the motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). This is
contrary to our holding in Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). 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.
[368 So.2d 120]
The trial court could have and should have denied Huggins' motion to dismiss for its failure to
comply with Rule 3.190(c)(4). The motion was not sworn to by Huggins, did not allege that the
material facts of the case were undisputed and did not demonstrate that undisputed facts failed to
establish a prima facie case. We stated in Ellis v. State, supra:
Initially, the defendant in his sworn motion must allege that the material facts of the case are
undisputed, describe what the undisputed material facts are, and demonstrate that the undisputed
facts fail to establish a prima facie case ... Obviously, if the undisputed facts as alleged in the
1
STATE v. HUGGINS, 368 So.2d 119 (1979)
motion to dismiss do not meet such burden then any response from the State would be
superfluous, and the motion may be summarily denied.
The order appealed is reversed and this case is remanded to the trial court for trial.
McCORD, C.J., and MELVIN, J., concur.
2
STATE v. HUGGINS, 368 So.2d 119 (1979)
STATE v. J.T.S.
No. 79-143.
373 So.2d 418 (1979)

STATE of Florida, Appellant, v. J.T.S. and G.R.W., Children, Appellees.
July 25, 1979.

Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for
appellant.
Worth T. Blackwell of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, and
Denis M. DeVlaming, Clearwater, for appellees.
BOARDMAN, Acting Chief Judge.

The trial court dismissed the delinquency petition filed against appellees J.T.S. and G.R.W. on
the ground that the undisputed facts did not establish a prima facie case against them. We
reverse.
Appellees were alleged to have committed criminal mischief, in violation of Section 806.13,
Florida Statutes (1977), in that they willfully and maliciously damaged an automobile by
"rocking and moving" the car. They filed a motion to dismiss, asserting that their actions were
not willful or malicious. The motion alleged that Deputies Wood and Smith of the Pinellas
County
[373 So.2d 419]
Sheriff's Department had testified that they had seen four juveniles bouncing on and rocking the
automobile in question in an effort to turn the car on an angle in its parking space, but that both
deputies had indicated that the children's desire was merely to move the car and not to damage it
in any way. The state filed a sworn response to the motion, denying that both deputies had
indicated that appellees' desire was not to damage the car; further denying that the children's
actions were not willful and malicious; and asserting that appellees' allegation to the contrary
was not a fact, but a conclusion.
At the hearing on the motion, Deputy Wood testified that one of the juveniles not involved in this
appeal had told him that the boys intended to turn the vehicle sideways in its parking space. No
one had told him during the course of his investigation of the incident that the boys' intent was to
damage the car. However, the boys had not indicated to Wood that it was not their intent to
damage the car.
In the first place, inasmuch as the state filed a traverse specifically denying under oath a material
fact alleged in the motion to dismiss, automatic denial of the motion was required. Fla.R.Crim.P.
1
STATE v. J.T.S., 373 So.2d 418 (1979)
3.190(d)1; Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla. 1977);
see also State v. Smith, 348 So.2d 637 (Fla. 2d DCA 1977).
Even if the state had not traversed appellees' motion to dismiss, it would have been error for the
trial court to grant the motion. The sole basis for the motion was that appellees lacked intent to
damage the automobile in question. Intent is not an issue to be decided on a motion to dismiss
under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, since intent is usually inferred
from the acts of the parties and the surrounding circumstances; being a state of mind, intent is a
question of fact to be determined by the trier of fact, who has the opportunity to observe all of
the witnesses. State v. West, 262 So.2d 457 (Fla. 4th DCA 1972).
A proceeding under Rule 3.190(c)(4) is the equivalent of a civil summary judgment proceeding,
and as stated in State v. West, supra at 458:
The trial court may not try or determine factual issues in a summary judgment proceeding; nor
consider either the weight of the conflicting evidence or the credibility of the witnesses in
determining whether there exists a genuine issue of material facts; nor substitute itself for the
trier of the fact and determine controverted issues of fact.
Accordingly, the order dismissing the delinquency petitions against appellees is REVERSED and
the cause REMANDED for further proceedings consistent with this opinion.
SCHEB and OTT, JJ., concur.
FootNotes
1. Although, this being a juvenile proceeding, the Florida Rules of Juvenile Procedure are
applicable, Rule 8.130(b)(2), Florida Rules of Juvenile Procedure provides only generally for the
filing of motions to dismiss and implicitly incorporates Rule 3.190(c) and (d). See Committee
Note (b)(2).
2
STATE v. J.T.S., 373 So.2d 418 (1979)
STATE v. JUSTO
No. 88-2510.
555 So.2d 893 (1990)

The STATE of Florida, Appellant, v. Alberto Manuel JUSTO, Appellee.
January 9, 1990.

Robert A. Butterworth, Atty. Gen., and Jacqueline M. Valdespino, Asst. Atty. Gen., for
appellant.
Bailey, Gerstein, Rashkind & Dresnick, and Ronald C. Dresnick, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and GERSTEN, JJ.
GERSTEN, Judge.
The State appeals the granting of a motion to dismiss an information. We reverse and remand.
Appellee, Alberto Manuel Justo, was charged by information with conspiracy to traffic in
cannabis and unlawful possession of cannabis. Appellee filed a motion to dismiss pursuant to
rule 3.190(c)(4), Florida Rules of Criminal Procedure, in which he set forth factual allegations in
support of his motion. The State did not initially file a traverse, or otherwise object to the motion,
and a hearing on the motion was scheduled.
At the hearing on the motion, the State objected to the motion as procedurally defective. One
ground upon which the State alleged a defect was a defective jurat. Appellee's motion contained
the following jurat:
Before me, the undersigned authority, personally appeared Alberto Manuel Justo who after being
duly sworn deposes and states that he has read the foregoing statement of facts and that the same
is true to the best of his knowledge and belief this 16th day of September, 1988.
Rule 3.190(c), Florida Rules of Criminal Procedure, states, in pertinent part:
However, the court may at any time entertain a motion to dismiss on any of the following
grounds: ... . (4) There are no material disputed facts and the undisputed facts do not establish a
prima facie case of guilt against the defendant. The facts on which such a motion is based should
be specifically alleged and the motion sworn to.
In such a motion, the defendant must be able to affirmatively assert that the allegations contained
in the motion are true and correct. See Devine v. State, 504 So.2d 788 (Fla. 3d DCA 1987); State
v. Socarras, 502 So.2d 31 (Fla.3d DCA 1987); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA
1979).
The specific form of the jurat in a motion to dismiss pursuant to rule 3.190(c)(4), Florida Rules
of Criminal Procedure, was addressed in State v. Rodriguez, 523 So.2d 1141 (Fla. 1988). In
1
STATE v. JUSTO, 555 So.2d 893 (1990)
Rodriguez, the Florida Supreme Court found that a jurat, in which a defendant swore that the
facts were true and correct "to the best of his knowledge," was insufficient. Such an oath, the
court reasoned, is "in effect, no oath at all." Rodriguez, 523 So.2d at 1142. See also State v.
Socarras, 502 So.2d at 32 (motion containing oath that facts were "true and correct to the best of
his knowledge, information and belief" was procedurally defective).
Appellee argues that because the State sought additional time to file a traverse, after the defense
offered to place appellee under oath in open court, the State abandoned its objection to the
procedural deficiencies. Appellee claims, therefore, that the State waived the jurat's invalidity.
However, there is nothing in the record establishing that the State expressly waived this
procedural requirement. Moreover, as previously stated, the State expressly objected to the
motion as procedurally defective. Further, if we were to accept appellee's argument and allow the
implied waiver of such a fundamental requirement, it would vitiate the purpose of the oath: "to
prevent the filing of falsehoods or unverified allegations." Rodriguez, 523 So.2d at 1142.
Upon finding that the motion was procedurally invalid because of the defective jurat, the court
should have gone no further and should have denied appellee's motion to dismiss as presented. It
should be noted that nothing precluded the court from granting appellee leave to amend the
motion to include a proper jurat. Similarly, nothing precluded the court from permitting the State
to file a traverse. The court did neither, but granted the motion.
Because of the foregoing, we find that the motion as filed was procedurally invalid and should
have been denied. Accordingly,
[555 So.2d 895]
we reverse and remand for further proceedings.

HUBBART, J., concurs.
SCHWARTZ, Chief Judge (dissenting).
When the prosecution raised the alleged defect in the jurat before the trial court, defense counsel
immediately offered to have Justo, who was in the courtroom, swear to the contents of the
motion to dismiss on the spot. The record is very clear that the state determined to forego this
procedure, thereby clearly waiving the right to insist upon the purported deficiency in the oath on
appeal. 3 Fla.Jur.2d Appellate Review §§ 291-93 (1978). The only effect of the majority's
consideration of the issue notwithstanding this waiver is to permit the state to correct the
deficiency in its response to the motion after remand, although it did not effectively do so the
first time it had the opportunity. Since this is unfairly contrary to the most basic rule of appellate
review, which requires the preservation of and insistence upon error below and which indeed
exists specifically to preclude any such second bite at the legal apple, Wagner v. Nottingham
Assoc., 464 So.2d 166 (Fla. 3d DCA 1985), review denied, 475 So.2d 696 (Fla. 1985); Pinder v.
State, 396 So.2d 272 (Fla. 3d DCA 1981), I must dissent.
2
STATE v. JUSTO, 555 So.2d 893 (1990)
STATE v. KAGAN
No. 87-3183.
529 So.2d 356 (1988)

STATE of Florida, Appellant, v. Robert L. KAGAN, Appellee.
August 10, 1988.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Amy Lynn Diem, Asst. Atty. Gen., West
Palm Beach, for appellant.
Mark King Leban of Law Offices of Mark King Leban, P.A., Miami, and Lyons & Sanders,
Chartered, Fort Lauderdale, for appellee.
PER CURIAM.
We reverse the trial court's dismissal of the information and remand. The sworn motion to
dismiss, on its face, was insufficient to warrant dismissal, as it parroted what another said on
deposition, and was not an unqualified recitation of facts within the defendant's personal
knowledge serving to dispel the issue of his knowing there was cocaine in the vial found in his
possession.
Moreover, the sanction of dismissal was too draconian even if the sworn motion had been
sufficient. The motion was filed on October 29th, and the state's motion to strike and/or traverse,
on November 23rd. The hearing was held the next day. While it is incumbent upon the state to
file its traverse a reasonable time before the hearing as required by Florida Rule of Criminal
Procedure 3.190(d), and there was an unsworn attempt to explain the delay, the defendant could
have been given time to rebut whatever the state offered — not only the state's above pleading,
but also the amended version tendered at the commencement of the hearing. Whether the
decision on this point would be different had the sworn motion been sufficient presents a
possibly fatal risk to prosecutors who file required pleadings belatedly without giving sworn,
meritorious explanations.
DOWNEY, GLICKSTEIN and DELL, JJ., concur.
1
STATE v. KAGAN, 529 So.2d 356 (1988)
STATE v. LOVE
No. 82-331.
415 So.2d 113 (1982)

The STATE of Florida, Appellant, v. Rufus Carl LOVE, Appellee.
June 15, 1982.

Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for
appellee.
Before HUBBART, C.J., and NESBITT and BASKIN, JJ.
PER CURIAM.
The appellee having confessed error in the trial court's granting of his sworn motion to dismiss,
and such error clearly appearing, the order of dismissal is reversed. The question of whether the
defendant knew that he was uttering a forged check, thus violating Section 831.02, Florida
Statutes (1981), is a question of fact which cannot be resolved by a motion to dismiss pursuant to
Florida Rule of Criminal Procedure 3.190(c)(4). See State v. Alford, 395 So.2d 201 (Fla. 4th
DCA 1981). The same is true as to whether the defendant had the requisite intent to injure or
defraud any person. See State v. Alexander, 406 So.2d 1192 (Fla. 4th DCA 1981).
1
STATE v. LOVE, 415 So.2d 113 (1982)
STATE v. McINTYRE
No. 74-332.
303 So.2d 675 (1974)

STATE of Florida, Appellant, v. Joseph McINTYRE, Appellee.
November 29, 1974.

Philip S. Shailer, State Atty., and Jon H. Gutmacher, Asst. State Atty., Fort Lauderdale, for
appellant.
Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort
Lauderdale, for appellee.
DOWNEY, Judge.
The state has appealed from an order dismissing an information charging appellee 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.
1
STATE v. McINTYRE, 303 So.2d 675 (1974)
STATE v. MOORE
No. 81-1873.
423 So.2d 1010 (1982)

STATE of Florida, Appellant, v. Ralph E. MOORE, Appellee.
December 29, 1982.

appellant.
Stephen D. Jerome, Pompano Beach, for appellee.
GLICKSTEIN, Judge.
The state appeals from an order granting appellee's "sworn" motion to dismiss. We question
whether the motion was "sworn to", as that term is used in Florida Rule of Criminal Procedure
3.190(c)(4), which provides in part:
The facts on which such motion is based should be specifically alleged and the motion sworn to.
Appellee declared that the motion was "true and correct to the best of his knowledge and belief."
He should have been required to attest to its truth, unqualifiedly. See State v. Upton, 392 So.2d
1013 (Fla. 5th DCA 1981). We see a distinction between a defendant's oath and that of an
assistant state attorney who can traverse only in good faith on the basis of the contents of his file,
not what he knows of his own knowledge.
The basis for the order of dismissal was the state's failure to traverse. We reverse and remand
because Florida Rule of Criminal Procedure 3.190(d) requires a traverse of a sworn motion
which alleges factual matters. The motion in this case was speculative and conclusory in nature,
not factual. It required neither traverse nor evidentiary hearing.
The facts show that the information was filed on October 9, 1980, charging appellee with
aggravated battery and possession of a weapon while engaged in a felony on October 27, 1979.
Appellee's motion asserted:
The failure of the State to place the Defendant under arrest prior to January 15, 1981 was entirely
unjustifiable and the delay in commencing prosecution has prejudiced the Defense. As a result of
this unjustifiable delay, the Defense can not remember all of the facts and circumstances which
will show that the Defendant was a victim, responding and acting entirely in his own self
defense. As a further result, the result, [sic] the defense is unable to locate people who were
present at the time of the incident and who could, with due diligence, have been found had
prosecution been commenced and Defendant arrested at a time nearer to the time of the incident
alleged. There is no justification for the state to have waited so long after the incident in question
to arrest the Defendant.
1
STATE v. MOORE, 423 So.2d 1010 (1982)
In State v. Newman, 367 So.2d 251, 252 (Fla. 4th DCA 1979), this court said:
[S]peculative allegations such as general allegations of loss of witnesses and failure of memories
are insufficient to establish the requisite actual prejudice. United States v. Medina-Arellano, 569
F.2d 349 (5th Cir.1978).
We subsequently disapproved conclusory allegations in Kassel v. State, 382 So.2d 1354 (Fla. 4th
DCA), pet. for rev. denied, 388 So.2d 1114 (Fla. 1980). We do it again here.
HERSEY and DELL, JJ., concur.
2
STATE v. MOORE, 423 So.2d 1010 (1982)
STATE v. NORRIS
No. 79-1887.
384 So.2d 298 (1980)

STATE of Florida, Appellant, v. William Reginald NORRIS, Appellee.
June 11, 1980.

appellant.
Charles M. Harris, Hollywood, for appellee.
HERSEY, Judge.
The State takes an appeal from an order granting appellee's motion to dismiss.
Appellee was charged with attempting to obtain a prescription drug by fraud. The circumstances
leading to this charge began with a telephone call to a pharmacist purportedly from a doctor
prescribing medication for a patient, one Ben Stroud. The pharmacist called the doctor and
ascertained
[384 So.2d 299]
that no such telephone call had been made by him nor did he have a patient named Ben Stroud.
Consequently, the pharmacist alerted the police who set up surveillance of the pharmacy. Upon
appellee's entry into the pharmacy and his request for the prescription for Ben Stroud, the police
approached him, asked him for identification and then placed him under arrest. In response to an
inquiry, appellee indicated that Ben Stroud was a friend and that he was picking up the
prescription at his request. A police officer located a slip of paper in one of the pockets of
appellee's jacket, containing the name and address of Ben Stroud, the name and B.N.D. number,
telephone number and partial address of the physician who allegedly made the original call, the
name and telephone number of the pharmacy, and the name tussionex (the prescription drug
involved here).
Appellee filed a pleading entitled "Sworn Motion to Dismiss," although the motion was not
made under oath. Attached to and filed with the motion was an affidavit of appellee that quoted
from a police report of the incident and contained a statement that the handwriting on the slip of
paper found in appellee's pocket was not his. The State filed a demurrer.
The trial court granted the motion to dismiss on the basis that the demurrer accepted the facts
alleged in the motion and that the facts "... as stated in the motion are insufficient to prove that
the Defendant has "knowledge" that the prescription was fraudulent."
We find error and reverse.
1
STATE v. NORRIS, 384 So.2d 298 (1980)
Neither the motion nor the affidavit contain any suggestion that appellee was without knowledge
of the fact that Ben Stroud was fraudulently attempting to obtain a prescription drug. In as much
as the State's demurrer does not admit that appellee was without such knowledge, this fact of
knowledge remains a material fact in dispute between the parties and therefore subject to trial on
the merits. Intent is not usually subject to direct proof, but may be inferred from the acts of the
parties and surrounding circumstances. Being a state of mind, intent is usually a question of fact
to be determined by the trier of fact. State v. West, 262 So.2d 457 (Fla. 4th DCA 1972). In this
respect knowledge is like intent. Heineman v. State, 327 So.2d 898 (Fla. 3rd DCA 1976).
In summary, the State could well admit every fact alleged in the motion to dismiss and the
accompanying affidavit and still make a case for the charge of attempting to obtain a prescription
drug by fraud. Under these circumstances, the order granting defendant's sworn motion to
dismiss contains reversible error and is accordingly reversed. The case is remanded for such
further proceedings as may be appropriate.
DOWNEY and MOORE, JJ., concur.
2
STATE v. NORRIS, 384 So.2d 298 (1980)
STATE v. PENA-SALAZAR
No. 81-1089.
405 So.2d 254 (1981)

The STATE of Florida, Appellant, v. Juan PENA-SALAZAR, Appellee.
October 27, 1981.

Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for
appellee.
Before HUBBART, C.J., and HENDRY and SCHWARTZ, JJ.
PER CURIAM.
This is an appeal by the state from an order entered by the trial court dismissing an information
under Fla.R.Crim.P. 3.190(c)(4). We have jurisdiction to entertain this appeal. Art. V, § 4(b)(1),
Fla. Const.; § 924.07(1), Fla. Stat. (1979).
Our review of the motion to dismiss filed herein reveals that it was legally insufficient
[405 So.2d 255]
under Fla.R.Crim.P. 3.190(c)(4), and, therefore, should have been summarily denied by the trial
court without regard to the state's traverse filed subsequent thereto. The motion fails to
demonstrate, as required by the above rule, that the alleged undisputed material facts as set forth
in the motion, "do not establish a prima facie case of guilt against the defendant." Fla.R. Crim.P.
3.190(c)(4). Indeed, the defendant concedes as much on this appeal but urges us to disregard this
insufficiency by looking to the state's traverse for additional undisputed material facts to sustain
the order under review. We reject the defendant's invitation to do so as we have previously held
that a legally insufficient motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) "should be
summarily denied by the trial court without regard to any traverse or demurrer which may be
filed by the state." State v. Sedlmayer, 375 So.2d 887, 888 (Fla. 3d DCA 1979); see also State v.
Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st
DCA), cert. denied, 352 So.2d 175 (Fla. 1977).
The order under review is, accordingly, reversed and the cause remanded to the trial court with
directions to reinstate the information against the defendant.
1
STATE v. PENA-SALAZAR, 405 So.2d 254 (1981)
STATE v. PENTECOST
No. 80-239.
397 So.2d 711 (1981)

STATE of Florida, Appellant, v. Grady Leon PENTECOST, Appellee.
March 18, 1981.
Rehearing Denied May 1, 1981.

Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for
appellant.
John A. Baldwin of Baldwin & Dikeou, Fern Park, for appellee.
DAUKSCH, Chief Judge.

This is an appeal from an order dismissing criminal charges against the appellee and an appeal
from an order granting the suppression of evidence. The two orders are rather interrelated. The
search and seizure was a result of an investigation regarding the sale of drugs. The charges were
for the participation in a drug transaction. The trial judge dismissed the charges because he
determined the state did
[397 So.2d 712]
not present a prima facie case of guilt against the appellee. Fla.R.Crim.P. 3.190(c)(4). The trial
judge granted the motion to suppress because he determined the police lacked probable cause to
arrest or search and seize.
Upon a review of the record, we must find there was probable cause to arrest and a right to seize
the gun. We also have to say there was at least a prima facie case of guilt shown by the state in
contravention of the "(c)(4)" motion. A trier of fact could find the appellee was a participant in
the drug transaction as a look-out or protector, both of which operatives are common to large
scale drug transactions, such as this one. The fact that the police saw appellee leave with the two
persons who were carrying the drugs and that he was later seen circling the area where the sale
was being consummated is sufficient to lead to a prima facie finding of involvement. Whether he
was involved and to what extent is up to the trier of fact to decide.
The order dismissing the charges cuts off the right of the state to attempt to prove its allegations
in much the same manner as a summary judgment proceeding on the civil side. So long as the
state barely shows a case against the accused it should be allowed to proceed with its case. Then
if the accused is entitled to a directed verdict at trial or an acquittal, each party has been given its
due. It is only when the state cannot establish even the barest bit of a prima facie case that it
should be prevented from prosecuting. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981);
State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980); State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA
1979).
ORFINGER and COWART, JJ., concur.
1
STATE v. PENTECOST, 397 So.2d 711 (1981)
STATE v. RODRIGUEZ
No. 70392.
523 So.2d 1141 (1988)

STATE of Florida, Petitioner, v. Carlos RODRIGUEZ, Respondent.
April 21, 1988.

Robert A. Butterworth, Atty. Gen. and Steven T. Scott, Asst. Atty. Gen., Miami, for petitioner.
Michael S. Hacker, Miami, for respondent.
GRIMES, Justice.
Pursuant to Article V, section 3(b)(3) of the Florida Constitution, we accepted jurisdiction of this
cause to resolve a conflict between our decision in Scott v. State, 464 So.2d 1171 (Fla. 1985),
and that of the Third District Court of Appeal below in State v. Rodriguez, 505 So.2d 628 (Fla.
3d DCA 1987).
The facts are simple. Respondent was charged by information with burglary of a conveyance and
theft. He filed, through his attorney, a pleading captioned "Sworn Motion to Dismiss," under
Rule 3.190(c)(4), Florida Rules of Criminal Procedure. Our focus here is not on the merits of the
motion, but on the jurat, which the rule requires. It read:
BEFORE me, the undersigned authority personally appeared, CARLOS MANUEL
RODRIGUEZ, who by me first duly sworn, deposes and says the facts contained in the
foregoing Motion To Dismiss are true and correct to the best of his knowledge.
(Emphasis supplied.)
The trial judge granted the motion to dismiss. On appeal, the state argued that the jurat was
insufficient because of the words "to the best of his knowledge." In affirming the dismissal, the
Third District Court of Appeal reasoned that the jurat "clearly rested upon the defendant's own
knowledge of the facts recited in the motion."
In Scott this Court considered a jurat on a motion for postconviction relief under rule 3.850,
Florida Rules of Criminal Procedure, which read:
Before me, the undersigned authority, personally appeared Paul William Scott, who, being first
duly sworn, says that he has personal knowledge of the allegations in the foregoing motion to
vacate judgment and/or sentence and that the allegations and statements contained therein are
true and correct to the best of his knowledge.
464 So.2d at 1172. Pointing out that the words "to the best of his knowledge" had been added to
the standard oath (see the form in rule 3.987, Florida Rules of Criminal Procedure), the Court
held the jurat to be procedurally defective. We said:
1
STATE v. RODRIGUEZ, 523 So.2d 1141 (1988)
Using this qualifying language, a defendant could file a motion for post-conviction relief based
upon a false allegation of fact without fear of conviction for perjury. If the allegation proved to
be false, the defendant would be able to simply respond that his verification of the false
allegation had been to the best of his knowledge and that he did not know that the allegation was
false. We require more than that. The defendant must be able to affirmatively say that his
allegation is true and correct.
464 So.2d at 1172.
Though this case involves a different rule of procedure, the purpose of the oath is the same: to
prevent the filing of motions based on falsehoods or unverified allegations. Under the rationale
of Scott, the oath contained in the motion to dismiss was, in effect, no oath at all, and thus
defective.
We hereby quash the decision of the district court and remand this cause for further proceedings
consistent with this opinion.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH, SHAW, BARKETT and KOGAN, JJ., concur.
2
STATE v. RODRIGUEZ, 523 So.2d 1141 (1988)
STATE v. SEDLMAYER
No. 79-580.
375 So.2d 887 (1979)

The STATE of Florida, Appellant, v. Richard J. SEDLMAYER, Appellee.
October 16, 1979.

Janet Reno, State's Atty., and Ira N. Loewy, Asst. State's Atty., for appellant.
Weiner, Robbins & Tunkey and William R. Tunkey, Miami, for appellee.
Before HENDRY, HUBBART and NESBITT, JJ.
HUBBART, Judge.
This is an appeal by the State of Florida from an order dismissing an information under
Fla.R.Crim.P. 3.190(c)(4). We have jurisdiction to entertain this appeal. § 934.07(1), Fla. Stat.
(1977). For the reasons which follow, we reverse and remand for further proceedings.
The facts of this case are as follows. The defendant Richard J. Sedlmayer was charged in a two
count information with perjury in the Circuit Court for the Eleventh Judicial Circuit of Florida.
The defendant filed a sworn motion to dismiss this information, which motion states as follows:
COMES NOW the Defendant, RICHARD J. SEDLMAYER, through counsel, pursuant to the
Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States of America and
pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) and petitions this Court to enter an
Order dismissing the above-styled cause and discharging the Defendant therefrom and in support
thereof, counsel alleges as follows: 1. The material and undisputed facts in this cause, taken in
the light most favorable to the State of Florida, fail to establish, prima facie, the guilt of the
Defendant. 2. The Defendant is charged by Information in this cause with two Counts of Perjury
in violation of Florida Statute § 837.02. 3. Each Count contained in the Information alleges
essentially the same thing. That is, in Count I, at a bond hearing, the Defendant is alleged to have
knowingly, willfully, and feloniously made a false statement which he did not believe to be true,
to-wit: that he, the said RICHARD JOSEPH SEDLMAYER, had not been previously requested
by the police to submit to the police his photograph and/or his fingerprints. In Count II of the
Information, the Defendant is charged with making the same statement; however, the second
Count alleges that the same statement was repeated at a subsequent deposition. 4. On neither
occasion that the Defendant allegedly made his statement was the statement material to the
official proceeding at which he gave said testimony. 5. Florida Statute, § 837.02(1) provides that
a violation of this Statute is committed only if the statement is knowingly false and made in
regard to any material matter. 6. Whether the Defendant was asked at a bond hearing or in a
deposition by the police to voluntarily give his photograph and/or his fingerprints is not and was
not a material issue in the case of State of Florida vs. Stephen William Beattie, Circuit Court
1
STATE v. SEDLMAYER, 375 So.2d 887 (1979)
Case No. 78-11313. WHEREFORE, inasmuch as the material and undisputed facts of this cause
fail to establish, prima facie, the guilt of the Defendant, undersigned counsel petitions this Court
to enter an Order dismissing the above-styled cause and discharging the Defendant therefrom.
[emphasis added]
The state filed a traverse to this motion specifically denying that the false statements made in
both counts of the information were not material to the proceedings and affirmatively alleged
that such statements were so material. The trial court heard and granted the motion to dismiss.
This appeal follows.
The law of Florida is well-settled that a legally sufficient sworn motion to dismiss under
Fla.R.Crim.P. 3.190(c)(4) must: (1) allege that the material facts of the case are undisputed, (2)
describe what the undisputed material facts are, and (3) demonstrate that the undisputed material
facts fail to establish a prima facie case of guilt against the defendant or that such facts establish
a valid defense (either an affirmative defense or a negation of an essential element of the charge.)
Ellis v. State, 346 So.2d 1044, 1045 (Fla. 1st DCA 1977). A motion to dismiss which fails to
satisfy any of these three prerequisites is a legally insufficient motion to dismiss under
Fla.R.Crim.P. 3.190(c)(4), and should be summarily denied by the trial court without regard to
any traverse or demurrer which may be filed by the state. State v. Huggins, 368 So.2d 119 (Fla.
1st DCA 1979).
In the instant case, the defendant's sworn motion to dismiss alleges at paragraphs four and six a
mere legal conclusion that the false statements made by the defendant at the bond hearing and
during a sworn deposition to the state attorney were not material to the official proceeding at
which the defendant made such sworn statements. The motion fails to describe the undisputed
facts upon which this legal conclusion rests, namely, what testimony was given at the bond
hearing and at the sworn deposition before the state attorney which demonstrates that the
statements made therein were not material to said proceedings. As such, the motion fails to
satisfy the above second and third prerequisites for a legally sufficient sworn motion to dismiss
under Fla.R.Crim.P. 3.190(c)(4) and should have been summarily denied.
Based on the established law of this state, we, accordingly, reverse the order of dismissal under
review and remand the cause to the trial court with directions to summarily deny the defendant's
motion to dismiss. This reversal shall be without prejudice to the defendant to file a legally
sufficient sworn motion to dismiss.
2
STATE v. SEDLMAYER, 375 So.2d 887 (1979)
STATE v. TORRES
No. 79-972.
375 So.2d 889 (1979)

The STATE of Florida, Appellant, v. David R. TORRES, Appellee.
October 16, 1979.

Janet Reno, State's Atty., and Kurt L. Marmar, Asst. State's Atty., for appellant.
Emilia B. Diaz, Miami, for appellee.
Before HENDRY, BARKDULL and HUBBART, JJ.
HUBBART, Judge.
This is an appeal by the State of Florida from an order granting a motion to dismiss an
information under Fla.R.Crim.P. 3.190(c)(4) entered in the Circuit Court for the Eleventh
Judicial Circuit of Florida. We have jurisdiction to entertain this appeal. § 924.07(1), Fla. Stat.
(1977).
The state contends, and the defendant does not deny, that the motion to dismiss filed herein
under Fla.R.Crim.P. 3.190(c)(4) was legally insufficient, that it did not require the filing of a
traverse or demurrer from the state, and that it should have been summarily denied by the trial
court. We agree and reverse.
The defendant was charged by information with carrying a concealed firearm [§ 790.01(2), Fla.
Stat. (1977)]. The defendant filed a sworn motion to dismiss this information which states as
follows:
COMES NOW, DAVID REYES TORRES, by and through his undersigned attorney, and files
this, his Sworn Motion to Dismiss, and alleges as follows: 1. That the arrest report dated
December 23, 1978, contains a narrative of what the arresting officers observed on the day in
question. 2. That said report does not state that the pistol in question was hidden from the
ordinary sight of another person. 3. That said report unequivocally states that the arresting officer
clearly saw the pistol in question, which was visible to the ordinary person since the Defendant's
shirt was `unbuttoned.' 4. That at no point in said narrative does the arresting officer state that the
pistol was `concealed,' `hidden' or `covered'; in fact, he states that it was immediately
ascertainable to him. 5. That proof of concealment is an essential element of the crime of
carrying a concealed firearm, and such element must be proven beyond a reasonable doubt. 6.
That the Defendant, on December 23, 1978, resided in the building in which said arrest took
place. 7. That the order to `halt' and the ensuing arrest took place a number of feet away from the
Defendant's apartment door. 8. That the said area was in such immediate vecinity [sic] to
constitute the `curtilage' area surrounding his home. 9. That subsection (3)(n) of Florida Statutes
1
STATE v. TORRES, 375 So.2d 889 (1979)
Section 790.25 specifically exempts a `person possessing arms at his home or place of business'
from the prohibitions of Section 790.01... ...
The arrest affidavit in the case was apparently attached to the motion to dismiss or was otherwise
relied upon by the defendant in support of said motion. The state filed a traverse to this motion
denying most of the allegations in the motion to dismiss and setting forth certain additional facts
in the case. The trial court heard and granted the defendant's motion to dismiss. This appeal
follows.
On its face, the motion to dismiss was legally insufficient and should have been summarily
denied by the trial court. First, the motion fails to allege that the material facts of the case are
undisputed. Secondly, the motion fails to describe what the material undisputed facts of the case
are. Third, the motion fails to demonstrate that the undisputed material facts do not establish a
prima facie case of guilt against the defendant or that such facts establish a valid defense (either
an affirmative defense or a negation of an essential element of the charge.) All of the above are
essential prerequisites to a legally sufficient motion to dismiss under Fla.R.Crim.P. 3.190(c)(4).
State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So.2d 1044 (Fla. 1st
DCA 1977). Moreover, relying
[375 So.2d 891]
upon or attaching the arrest affidavit in this case as an adjunct to the motion to dismiss is not the
equivalent of alleging the material undisputed facts of the case in the motion as required by the
rule. Use of the arrest affidavit is appropriate in support of the facts alleged in the motion, but is
not a substitute for such allegations. State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974). As
such, the trial court erred in granting the motion to dismiss in this case.
The order under review is reversed and the cause is remanded to the trial court with directions to
summarily deny the defendant's motion to dismiss. This reversal shall be without prejudice to the
defendant to file a legally sufficient sworn motion to dismiss.
2
STATE v. TORRES, 375 So.2d 889 (1979)
STATE v. UPTON
No. 79-265.
392 So.2d 1013 (1981)

STATE of Florida, Appellant, v. George Louis UPTON, Appellee.
January 28, 1981.

Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for
appellant.
No appearance for appellee.
ORFINGER, Judge.
The State appeals1 the dismissal of an information pursuant to Rule 3.190(c)(4), Florida Rules of
Criminal Procedure. We reverse.
The appellee and a co-defendant had been charged with burglary of a structure and grand theft.
The trial court dismissed the information because it concluded from the motion that the State's
case was circumstantial and did not exclude every reasonable hypothesis of innocence. The State
orally traversed the motion, and there was no objection to the form of the traverse.
The function of a "(c)(4)" motion to dismiss is to ascertain whether or not the facts which the
State relies upon to constitute the crime charged, and on which it will offer evidence to prove it,
do, as a matter of law, establish a prima facie case of guilt of the accused. State v. Davis, 243
So.2d 587 (Fla. 1971). Where the undisputed material facts do not legally constitute the crime
charged, or they affirmatively establish a valid defense, a motion to dismiss should be granted.
Where, however, the undisputed facts permit the conclusion that the defendant could be found
guilty, the motion must be denied. State v. De Jerinett, 283 So.2d 126 (Fla.2d DCA), cert. denied
287 So.2d 689 (Fla. 1973).
Unlike the standard to be employed by a jury when it considers the evidence, on a "(c)(4)"
motion all inferences are resolved against the defendant. De Jerinett, supra. Here, while much of
the evidence is circumstantial, it cannot be said that the recited "facts" do not establish a prima
facie case of guilt against the defendant. In considering such a motion, the trial court should not
determine fact issues or consider the weight of conflicting evidence or the credibility of
witnesses. State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980). If the State's evidence is all
circumstantial, then whether it has carried its burden of excluding all reasonable hypotheses of
innocence must be decided at the close of all the evidence. To withstand a motion to dismiss, the
State need show only a prima facie case. State v. Cramer, 383 So.2d 254 (Fla.2d DCA 1980).
See also Ritter v. State, 390 So.2d 168 (Fla. 5th DCA 1980). The State orally traversed the key
allegation of defendant's motion, and there was no objection to the form of the traverse.
Although the rule undoubtedly requires the traverse to be in writing, this requirement can be
1
STATE v. UPTON, 392 So.2d 1013 (1981)
waived. Turner v. State, 388 So.2d 254 (Fla. 1st DCA 1980). The motion as filed did not require
dismissal even in the absence of a traverse.
Although the foregoing is sufficient basis for our decision here, we must point to a further
serious flaw in the motion. A motion to dismiss under Florida Rules of Criminal Procedure
3.190(c)(4) must specifically allege the facts on which the motion is based and the motion must
be sworn to. The motion sub judice was a narrative of "facts" by the attorney and
[392 So.2d 1016]
much of it consisted of a recitation of his interviews with witnesses and what he believed these
witnesses would say. The attorney then swore that the motion was true "to the best of his
knowledge." This does not satisfy the requirement of a "sworn motion" as required by the Rule.
To "swear" means to declare on oath the truth (of a pleading, etc.). Black's Law Dictionary, 5th
Ed. (1979). This requires that the declarant state on oath that the fact alleged is true, to his
knowledge, not that he believes it to be true because someone else has told him that it is. As the
court said in State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979):
The trial court could have and should have denied Huggins' motion to dismiss for its failure to
comply with Rule 3.190(c)(4). The motion was not sworn to by Huggins... .
Id. at 120. See also Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied 352 So.2d 175
(Fla. 1977), and State v. Kling, 335 So.2d 614 (Fla.2d DCA 1976). A motion to dismiss under
this rule should be summarily denied when it is not sworn to by the defendant who, by taking the
oath, thus subjects himself to the penalties of perjury if his recitation of "undisputed facts" is
false.
The order dismissing the information is reversed and the cause is remanded for further
proceedings consistent herewith.
DAUKSCH, C.J., and COBB, J., concur.
FootNotes
1. Rule 9.140(c)(1)(A), Florida Rules of Appellate Procedure.
2
STATE v. UPTON, 392 So.2d 1013 (1981)
STATE v. WEST
No. 70-860.
262 So.2d 457 (1972)

STATE of Florida, Appellant, v. Gerald L. WEST, Appellee.
May 19, 1972.

Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West
Palm Beach, for appellant.
L.B. Vocelle, Vero Beach, for appellee.
MUSZYNSKI, B.C., Associate Judge.

The State of Florida appeals from an order of dismissal entered by the trial court pursuant to
Rule 1.190(c) (4), Fla. R.Crim.P., 33 F.S.A. That order was entered on motion of appellee that
there were no material disputed facts and the undisputed facts did not establish a prima facie case
of guilt. Appellee was charged with possession of a false, forged or counterfeit note in violation
of Florida Statute § 831.11, F.S.A., which provides:
Bringing into the state forged bank bills. Whoever brings into this state or has in his possession a
false, forged or counterfeit bill or note in the similitude of the bills or notes payable to the bearer
thereof or to the order of any person issued by or for any bank or banking company established
in this state, or within the United States, or any foreign province, state or government, with intent
to utter and pass the same or to render the same current as true, knowing the same to be false,
forged or counterfeit, shall be punished by imprisonment in the state prison not exceeding five
years, or in the county jail not exceeding twelve months, or by fine not exceeding one thousand
dollars. (Emphasis added.)
It was agreed by the attorneys for each party for the purposes of the motion that a single,
counterfeit ten-dollar-bill was passed by Gerald L. West to an undercover agent. It was further
agreed that the counterfeit bill was known by the agent to be a counterfeit bill and that it was
stated by West to be a sample and that he could
[262 So.2d 458]
get several thousand dollars in such counterfeit money.

A reading of this statute reveals that the act prohibited must be accomplished with intent. The
intent of the accused is an essential element of the offense charged. It is not usually the subject of
direct proof. It is inferred from the acts of the parties and from the surrounding circumstances.
Williams v. State, Fla. App. 1970, 239 So.2d 127; Edwards v. State, Fla.App. 1968, 213 So.2d
274; Groneau v. State, Fla.App. 1967, 201 So.2d 599; Jones v. State, Fla.App. 1966, 192 So.2d
285; Scott v. State, Fla.App. 1962, 137 So.2d 625.
1
STATE v. WEST, 262 So.2d 457 (1972)
Being a state of mind, intent is usually a question of fact to be determined by the trier of fact.
The trier of fact has the opportunity to observe the witnesses. From that observation, the trier of
fact may determine the believability of that witness and the weight to be given his testimony.
The demeanor of the witness, his frankness, or lack of frankness, his intelligence, his interest in
the outcome of the case, and the reasonableness of the testimony presented, in the light of all the
evidence in the case, are but a few of those factors which may play a part in making that
determination.
The summary judgment procedure provided for by Rule 1.190(c) (4), Fla.R. Crim.P., is not as
frequently encountered as a summary judgment proceeding in civil litigation. It has been held,
and it is generally accepted, that summary judgments should be entered with caution. Champion
Map Corporation v. Chamco, Incorporated, Fla.App. 1970, 235 So.2d 50; Meigs v. Lear,
Fla.App. 1968, 210 So.2d 479.
The trial court may not try or determine factual issues in a summary judgment proceeding; nor
consider either the weight of the conflicting evidence or the credibility of the witnesses in
determining whether there exists a genuine issue of material facts; nor substitute itself for the
trier of the fact and determine controverted issues of fact. Coquina Ridge Properties v. East West
Company, Fla.App. 1971, 255 So.2d 279; Strode v. Southern Steel Construction Company,
Fla.App. 1966, 188 So.2d 690; Baskin v. Griffith, Fla.App. 1961, 127 So.2d 467; Willard
Homes, Inc. v. Sanders, Fla.App. 1961, 127 So.2d 696; Humphrys v. Jarrell, Fla.App. 1958, 104
So.2d 404; Jones v. Stoutenburgh, Fla. 1956, 91 So.2d 299.
For the foregoing reasons, we are of the opinion that the trial court should not have entered the
order of dismissal. The matter should be disposed of by appropriate proceedings before the trier
of the fact.
Therefore, the order of dismissal is reversed and the cause remanded to the trial court for further
proceedings.
WALDEN, J., concurs.
CROSS, J., concurs in conclusion.
2
STATE v. WEST, 262 So.2d 457 (1972)

State's MTS Case Law2

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

State's MTS Case Law2

Uploaded by

Copyright:

Available Formats

CUMMINGS v.

378 So.2d 879 (1979)

Attorney(s) appearing for the Case

470 So.2d 1387 (1985)

Attorney(s) appearing for the Case

BOYD, Chief Justice.

OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

741 So.2d 1158 (1999)

Attorney(s) appearing for the Case

346 So.2d 1044 (1977)

Attorney(s) appearing for the Case

BOYER, Chief Judge.

783 So.2d 1029 (2001)

Attorney(s) appearing for the Case

[783 So.2d 1038]

382 So.2d 1354 (1980)

Attorney(s) appearing for the Case

474 So.2d 884 (1985)

Attorney(s) appearing for the Case

411 So.2d 981 (1982)

Attorney(s) appearing for the Case

406 So.2d 1192 (1981)

Attorney(s) appearing for the Case

395 So.2d 201 (1981)

Attorney(s) appearing for the Case

LETTS, Chief Judge.

508 So.2d 1268 (1987)

Attorney(s) appearing for the Case

Rehearing and Rehearing En Banc Denied July 22, 1987.

409 So.2d 1139 (1982)

Attorney(s) appearing for the Case

383 So.2d 254 (1980)

Attorney(s) appearing for the Case

627 So.2d 1314 (1993)

Attorney(s) appearing for the Case

RYDER, Acting Chief Judge.

394 So.2d 1068 (1981)

Attorney(s) appearing for the Case

of a false, forged or counterfeit note, and said:

600 So.2d 1236 (1992)

Attorney(s) appearing for the Case

and substitute the following with clarifications thereof.

16 Fla. L. Weekly Supp. 876a

Online Reference: FLWSUPP 169FERN2

ORDER GRANTING STATE'S MOTION TO

STRIKE DEFENDANT'S MOTION TO SUPPRESS

FOR LACK OF SUBSTANTIAL COMPLIANCE

Application of the Veilleux Opinion

The Doctrine of Separation of Powers

The Doctrine of Primary Jurisdiction

The Administrative Courts and the D.O.A.H.

Will Provide a More Efficient and Effective

Forum for the Defendant's Rules Challenge

The Framework of the A.P.A. Allows the Case to

Proceed Through the Administrative Courts

and the D.O.A.H. in an Efficient Manner

and Promotes Sound Public Policy

Defendant Has the Burden of Showing Non-Compliance

by Preponderance of the Evidence

Previous Court Decisions in Similar Matters

465 So.2d 580 (1985)

Attorney(s) appearing for the Case

380 So.2d 534 (1980)