STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
EVARISTO SOTO, JR., APPELLEE/CROSS-APPELLANT
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A prior dismissal of a criminal charge without a traverse does not preclude the state from refiling the charge and filing a legally sufficient traverse.
The State initially charged Appellee with battery on an elderly person, but the information was dismissed because the State failed to file a traverse.…
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TORPY, J.
The State challenges an order dismissing the second count of an information which charged Appellee with battery on a person 65 years of age or older. By cross-appeal, Appellee challenges that portion of the order that denies his Motion to Dismiss as it relates to Count 1 of the information.
Initially, the State charged Appellee with battery on his 82-year-old father. Appellee filed a Motion to Dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), to which the State did not traverse. Based on the lack of a traverse, the lower court dismissed the information. Thereafter, the State filed a new information. Count 2 of the new information was essentially the same charge that had been previously dismissed. When Appellee filed a Motion to Dismiss directed at the new information, the State filed a legally sufficient traverse. The trial court granted the motion as to Count 2, apparently believing that the prior order of dismissal was res judicata. It was not. Because the State had not previously filed a traverse, the earlier dismissal did not preclude the State from re-filing the same charge and avoiding a dismissal by filing a legally sufficient traverse. State v. Gellis, 375 So. 2d 885 (Fla. 3d DCA 1979).
Appellee’s cross-appeal challenges the denial of the Motion to Dismiss Count 1. We find Appellee’s challenge as to Count 1 to be without merit, and that portion of the court’s order is affirmed.
The order dismissing Count 2 of the information is reversed and this cause is remanded for further proceedings consistent herewith.
REVERSED in part; AFFIRMED in part and REMANDED
THOMPSON and MONACO, JJ., concur.
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State v. Sadler, 920 So. 2d 647 (Fla. 5th DCA 2005)…ler. That’s as far as I’m concerned. We commence our discussion by noting the general rule that, when the State does not traverse a rule 3.190(c)(4) motion, the State is not precluded from refiling the same charges after a dismissal. State v. Soto, 869 So. 2d 641 (Fla. 5th DCA 2004). Notwithstanding the general rule, however, when the court dismisses the charges “with prejudice,” the State may not refile the charges. State v. Carter, 452 So. 2d 1137, 1139 (Fla. 5th DCA 1984). Here, the lower court did not us…
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State v. Lindemuth, 193 So. 3d 55 (Fla. 3d DCA 2016)…usly been litigated between the parties in the defendant’s favor. The latter did not occur in this cause, and, accordingly, the instant information was not subject to dismissal. Gellis, 375 So. 2d at 886 (citations omitted); see also State v. Soto, 869 So. 2d 641 (Fla. 5th DCA 2004) (holding that when the State does not traverse a rule 3.190(c)(4) motion to dismiss, the State is not precluded from refiling the same charges after dismissal, citing to Gellis). Gellis is directly on point and binding precedent…
Authorities Cited
- State v. Gellis, 375 So. 2d 885 (Fla. 3d DCA 1979)