STATE OF FLORIDA, APPELLANT,
v.
CALZENA WHITEHEAD, APPELLEE
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Florida's appellate court reversed a trial court's dismissal of a manslaughter charge, holding that when the State files a sworn traverse denying material facts in a motion to dismiss, the motion must be denied as a matter of law.
A motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) must be denied when the State files a sworn traverse denying material facts alleged in the motion.
[1] When the State files a sworn traverse under Fla.R.Crim.P. …
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Join FLexlaw to unlock all legal intelligenceCalzena Whitehead was charged with manslaughter and filed a sworn motion to dismiss alleging no material disputed facts and that undisputed facts did …
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PER CURIAM.
Calzena Whitehead was charged by information with manslaughter. She filed a sworn motion to dismiss under Fla.R. Crim.P. 3.190(c)(4), alleging that there were no material disputed facts and that the undisputed facts did not establish a prima facie case of guilt against her. The State, under Fla.R.Crim.P. 3.190(d), filed a sworn traverse and demurrer in which it specifically denied material allegations contained in the motion to dismiss. The trial court heard argument on defendant’s motion to dismiss and the State’s traverse and demurrer and granted the motion to dismiss, whereupon the State took this appeal challenging the trial court’s order of dismissal.
Generally, upon the filing of a traverse or demurrer to a motion to dismiss, Fla.R.Crim.P. 3.190(d) is controlling:
“(d) Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. . A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss.” (emphasis added)
We hold that the trial court committed reversible error in granting the defendant’s sworn motion to dismiss in the face of the State’s traverse which specifically denied material facts alleged by defendant. Accordingly, the cause is Reversed and remanded with directions to reinstate the information.
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State v. Shular, 400 So. 2d 781 (Fla. 3d DCA 1981)…ed a sworn traverse specifically denying material factual matters related in the sworn motion to dismiss. Fla.R.Crim.P. 3.190(d). State v. Power, 369 So. 2d 96 (Fla. 2d DCA 1979); State v. Cook, 354 So. 2d 909 (Fla. 2d DCA 1978); State v. Whitehead, 353 So. 2d 900 (Fla. 3d DCA 1977); Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977), cert. denied, 352 So. 2d 175 (Fla.1977). Reversed and remanded for further proceedings consistent with this opinion. . Since Askew died without communicating the reasons for…
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State v. Williams, 395 So. 2d 287 (Fla. 3d DCA 1981)…469 (Fla. 1st DCA 1974) (in all of which the weapon was immediately visible). Under these circumstances, denial of the motion to dismiss was mandated. Fla.R. Crim.P. 3.190(d); State v. Merritt, 394 So. 2d 531 (Fla. 3d DCA 1981); State v. Whitehead, 353 So. 2d 900 (Fla. 3d DCA 1977). Reversed. . This section defines a concealed firearm as “any firearm ... when the same is carried on or about a person in such a manner as to conceal said firearm from the ordinary sight of another person.” . It is axiomatic t…