STATE OF FLORIDA, APPELLANT,
v.
ODILLIO ALVAREZ, APPELLEE
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Florida appeals the trial court's dismissal of a conspiracy to deliver marijuana charge against Alvarez. The court reversed, holding that when the state files a sworn traverse denying material facts in a motion to dismiss, those facts become disputed questions for the jury rather than facts the trial court may strike in evaluating the prima facie case.
The order dismissing the information is reversed. When the state files a sworn traverse denying material facts in a motion to dismiss, those facts become disputed and present questions for the jury; the trial court cannot strike such facts and rule on a revised pleading.
[1] A motion to dismiss an information, when traversed by the state under oath, must be denied if the traverse denies material facts alleged in the motion.
[2] A trial court may not try or determine factual issues or substitute itself for the trier of fact when ruling on a motion to dismiss.
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Join FLexlaw to unlock all legal intelligence“the state filed a traverse denying under oath material facts alleged in the motion to dismiss, requiring automatic denial of the motion”
Establishes the legal principle that sworn denials of material facts trigger automatic denial of the motion and create disputed factual issues
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Join FLexlaw to unlock all legal intelligenceAlvarez was present in Hilton Head, South Carolina with alleged co-conspirators at a possible marijuana unloading site. Alvarez spoke only Spanish exc…
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RYDER, Judge.
The trial court dismissed an information charging Alvarez with the offense of conspiracy to deliver marijuana in excess of 100 pounds. In so doing, the court found that the undisputed facts did not establish a prima facie case against Alvarez. We disagree and reverse.
Alvarez’ motion to dismiss asserts that while he was present in Hilton Head, South Carolina with the other alleged co-conspirators, there is no evidence to show that an agreement existed between him and any other person to commit the crime of conspiracy to deliver marijuana. Allegedly Alvarez’ language was Spanish and during all activities set forth in the motion he spoke no English with the exception of the word “Florida.” The state’s witness, one McFarland, who was present at the meeting in South Carolina, did not speak Spanish and was unable to understand what the appellee said.
The state filed a traverse stating that the conversation in South Carolina with the other co-conspirators took place at a possible marijuana unloading site in the vicinity of Hilton Head. Although appellee was only speaking Spanish, he was directing the activities of the other Spanish speaking individuals. The other co-conspirators interpreted for McFarland. In addition, the state added that Alvarez became frustrated in his attempted negotiations with a shrimp boat captain named Jones concerning the unloading of marijuana and terminated the discussion by ordering the group back to Florida.
The trial court adopted its own unique procedure on the motion to dismiss. If the state denied a material fact in appel-lee’s motion to dismiss, the court would strike that fact and examine the rest of the motion to see if a prima facie case exists.
It should be pointed out that proceeding under rule 3.190(c)(4) is the equivalent of a civil summary judgment and the trial court may not try or determine factual issues nor substitute itself for the trier of fact and determine controverted issues of fact. State v. J.T.S., 373 So. 2d 418 (Fla.2d DCA 1979). Here, the state filed a traverse denying under oath material facts alleged in the motion to dismiss, requiring automatic denial of the motion. State v. J.T.S., supra; Fla.R.Crim.P. 3.190(d).
The fallacy in the trial court’s approach to the motion is a misconception as to the effect of the denial of fact by the state. The denial does not mean that the facts alleged in the motion do not exist. The denial simply means that the facts are in dispute and therefore present a question for the jury. Once the court struck all disputed facts, it was actually ruling on a totally new pleading. This is error. Accordingly, the order dismissing the information against appellee is REVERSED, the information is reinstated, and the cause REMANDED for further proceedings.
GRIMES, A. C. J., and OTT, J., concur.
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Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985)…e the movant from subsequently arguing disputed facts in a Harris type hearing in an attempt to set aside prior convictions. A (c)(4) motion to dismiss in criminal cases in analogous to a motion for summary judgment in civil cases. State v. Alvarez, 403 So. 2d 1143 (Fla. 2d DCA 1981). Denial of a motion for summary judgment on a particular count of the complaint based upon a ruling that the facts are disputed and do not support judgment in the movant's favor does not preclude the moving party from continuing t…
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State v. Martin, 422 So. 2d 12 (Fla. 2d DCA 1982)…to dismiss. We hold that when the state filed a traverse specifically denying material facts alleged in the motion, the court had no alternative but to deny the motion without the taking of testimony. Fla.R.Crim.P. 3.190(d). See State v. Alvarez, 403 So. 2d 1143 (Fla.2d DCA 1981); State v. J.T.S., 373 So. 2d 418 (Fla.2d DCA 1979); State v. Huggins, 368 So. 2d 119 (Fla.1st DCA 1979). The central element of appellee’s motion below was that the cashiers did not have a sufficient possessory interest in the mone…
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Goodman v. State, 689 So. 2d 428 (Fla. 1st DCA 1997)…was a firearm on the floorboard of the car, behind appellant’s heel. Because this ultimate issue of fact was one which could be resolved only by the trier of fact, the trial court correctly denied the motion to dismiss. See, e.g., State v. Alvarez, 403 So. 2d 1143, 1144 (Fla. 2d DCA 1981) (“proceeding under rule 3.190(c)(4) is the equivalent of a civil summary judgment and [*430] the trial court may not try or determine factual issues nor substitute itself for the trier of fact”). Appellant argues that Gibso…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. J. T. S. and G. R. W., 373 So. 2d 418 (Fla. 2d DCA 1979)