Purpose of a Motion to Dismiss
At its core, a motion to dismiss filed under Rule 3.190 is a pretrial mechanism to terminate a criminal prosecution through court action because of some legal or technical defect in the proceedings. Rule 3.190(b), Florida Rules of Criminal Procedure, provides:
All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance former acquittal, former jeopardy, or any other defense.
Under Rule 3.190, a Motion to Dismiss can be filed for a multitude of reasons, including, but not limited to, statute of limitations violations, pardons, failures to establish a prima facie case of guilt (factual insufficiencies), double jeopardy, prosecutorial immunity, discovery violations, prosecutorial misconduct, due process violations, unconstitutionality of a state law or criminal charge, speedy trial expiration, and legal insufficiencies in the indictment or information.
In all of these scenarios, there is a legal or technical bar to the State persisting in the prosecution of a defendant. If a defendant properly establishes these defenses upon the filing of a Motion to Dismiss, the Court will intervene pretrial to terminate the proceedings.
Impermissible Uses of a Motion to Dismiss
In the practice of criminal law, there are certain pervasive myths that defense attorneys spend a great deal of time and effort attempting to dispel for their clients. One such myth is typically expressed as follows:
“That police officer is lying. It’s my word against his, and the State’s evidence is weak. Why aren’t you filing a Motion to Dismiss? You’re not on my side.”
Contrary to the beliefs of many defendants, a Motion to Dismiss filed under Rule 3.190 is not a place to raise factual disputes pertaining to the substance of a present charge. These Motions are directed to legal or technical defects in the proceedings, and, as such, it is improper for a trial court to decide factual matters, weigh evidence, or assess the credibility of witnesses in a hearing on a Motion to Dismiss. State v. Shuler, 988 So. 2d 1230 (Fla. 5th DCA 2008); Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977).
Stated another way, a Motion to Dismiss is not a substitute for trial, and there is no requirement that the State establish pretrial that it is capable of meeting its burden of proof. State v. Lebron, 954 So. 2d 52 (Fla. 5th DCA 2007). As long as there is a minimum of evidence and a good faith factual dispute supporting a prima facie case of guilt, and as long as there are no other technical grounds on which to dispose of a case, a criminal defendant is powerless to stop a prosecution with a motion to dismiss. Jalbert v. State, 906 So. 2d 337 (Fla 5th DCA 2007); State v. Cabret, 730 So. 2d 843 (Fla. 5th DCA 1999).
Requirements for a Motion to Dismiss
The basic procedural requirements for a Motion to Dismiss are contained in Rule 3.190(a) and 3.190(c), Florida Rules of Criminal Procedure. In addition to caption requirements, the motion must: (1) be in writing; (2) be signed by the party or party attorney making the motion; (3) state the grounds on which it is based; (4) be served on the adverse party; and (5) be alleged specifically and be sworn to by the defendant.
To be legally sufficient and avoid a summary denial, a Motion to Dismiss in Florida must include the following content: (1) an allegation that the material facts of the case are undisputed, (2) a description of the undisputed material facts, (3) and a demonstration that the undisputed material facts fail to establish a prima facie case of guilt, or that the facts amount to a valid legal defense. Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977). Moreover, the defendant can not simply recite what other witnesses have said about an incident. There must be an affirmative set of factual allegations as to what actually happened. See State v. McIntyre, 303 So. 2d 675 (Fla. 4th DCA 1974).
When Can a Motion to Dismiss be Filed?
Under rule 3.190(c), Florida Rules of Criminal Procedure, a Motion to Dismiss must be filed before or at a defendant’s arraignment, unless the court, in its discretion, grants additional time. There are five important exceptions to this rule where the trial court may hear the motion at any time:
- Where the defendant is charged with an offense for which he/she has been pardoned;
- Where the defendant is charged with an offense for which he/she has previously been placed in jeopardy (double jeopardy grounds)
- Where the defendant is charged with an offense for which he or she was granted immunity;
- Where there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant;
- Where there are objections based on “fundamental grounds.” These may include statute of limitations defenses, the unconstitutionality of a charge or statute, and the failure to state a criminal offense in the charging instrument.
Where none of these exceptions apply, a failure to file a motion to dismiss at or before arraignment will result in a waiver of that defense, unless the court, in its discretion, granted additional time to the defendant.
Motions to Dismiss Under Rule 3.190(c)(4)
Under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, a defendant may, at any time, file a motion to dismiss on grounds that there are no disputed issues of material fact in the case and the undisputed facts do not amount to a prima facie case of guilt. In this type of “C4” motion, the defendant alleges that the State and defense agree on the essential facts involved in a case and, even if those facts are taken as true, they do not amount to a criminal offense. The court can therefore intervene to make a legal ruling on the issue without weighing evidence or determining factual matters.
Example 1: Defendant is arrested after police found him engaging in nude sunbathing at a public beach. He is charged with Exposure of Sexual Organs under Section 800.03, Florida Statutes. After deposing the arresting officer, the undisputed facts that emerge are that the defendant was nude, that he was laying on his back, and that he was not sexually aroused or engaged in any discernible sexually-oriented activity.
In this scenario, a Motion to Dismiss under Rule 3.190(c)(4) is appropriate. Even if all the facts are taken as true, the defendant’s conduct does not amount to a prima facie case of guilt for Exposure of Sexual Organs because, under governing case law, mere public nudity is insufficient to sustain a conviction for the offense. In the absence of an allegation of lascivious conduct that accompanied the nudity, the court can rule as a matter of law that the defendant’s conduct did not constitute an offense under Section 800.03.
Example 2: Defendant is arrested when a police officer alleges that Defendant refused to leave a restaurant after being asked repeatedly by a restaurant manager to do so. Depositions are conducted of four non-police witnesses, including the restaurant manager. All four witnesses will testify that the defendant was never asked to leave. The officer continues to maintain that the manager repeatedly asked Defendant to leave, and that the manager asked the officer to escort the defendant from the premises.
In this scenario, a Motion to Dismiss under Rule 3.190(c)(4) is not appropriate, and will automatically be denied upon the filing of a legally sufficient traverse by the prosecution. Although the State’s trial prospects appear dim (given the number of witnesses contradicting the officer), a trial court is not authorized in this type of motion to determine factual matters or to weigh evidence. Moreover, there is no legal requirement that the State establish pretrial its ability to meet its burden of proof. Absent other non-factual grounds to dispose of the case, the disgruntled defendant must leave his or her case in the hands of a jury.
The Prosecution’s Response: Traverse and Demurrer
Once a defendant files a legally sufficient motion to dismiss on factual grounds (i.e. no prima facie case of guilt), the burden then shifts to the State to respond. Under Florida law, this response can take two forms: the traverse and the demurrer.
A traverse is a type of pleading filed to contradict and defeat a motion to dismiss by either specifically denying a material fact or by presenting additional facts that amount to a prima facie case of guilt. State v. Kalogeropoulis, 735 So. 2d 507, 508-09 (Fla. 4th DCA 1999). Under Rule 3.190(d), Florida Rules of Criminal Procedure, a traverse must: (1) be sworn to, (2) be filed a reasonable time before the hearing on the motion to dismiss, and (3) contain a specific denial of the facts so as to demonstrate the existence of a prima facie case.
As referenced above, the prosecution must deny the material facts it addresses in the traverse with specificity. A general, conclusory, or speculative response by the prosecution in its traverse is insufficient and constitutes an admission of the facts in question. State v. Kalogeropolous, 758 So. 2d 110 (Fla. 2000); State v. Nunez, 881 So. 2d 658 (Fla. 3d DCA 2004). A traverse filed in bad faith, or the failure to file a traverse at all, will also result in an admission of the undisputed facts as alleged by the defense. State v. Yarborough, 571 So. 2d 17 (Fla. 2d DCA 1990); State v. Sammons, 889 So. 2d 857 (Fla. 4th DCA 2004). Specificity for a traverse requires the state to address the particular underlying facts of a case, and to present those in its filing so that the facts as alleged by the State are before the court. State v. Kalogeropoulis, 735 So. 2d 507, 508-09 (Fla. 4th DCA 1999) (apprv’d State v. Kalogeropolous, 758 So. 2d 110 (Fla. 2000)).
In contrast to a traverse, a demurrer does not deny the undisputed material facts as alleged by the defendant, but instead contends that those facts do amount to a prima facie case of guilt. Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977). Frequently, prosecutors will re-label a demurrer as a “traverse” in order to avoid a hearing on purely legal questions and to induce a summary denial of the Motion. This practice is improper.
Legal Effect of a Traverse or Demurrer
The filing of a legally sufficient traverse by the State will result in an automatic denial of a motion to dismiss. State v. Elliot, 941 So. 2d 567 (Fla. 1st DCA 2006). In that instance, a hearing on the matter, if held at all, will be limited to an examination of the legal sufficiency of the traverse. For this reason, a Motion to Dismiss should be carefully considered and filed only in those cases where the State’s pursuit of the charges is based on a misapprehension of the law. When possible, a defendant should attempt to force the State to demur to the Motion, thereby leaving a pure question of law for the court to decide in the defendant’s favor.
Where the State files a demurrer, an automatic denial of the motion does not follow, as the court can entertain legal argument as to whether the undisputed facts actually constitute the charged offense. See Rule 3.190(d) (mandating a denial of a motion to dismiss under subdivision (c)(4) in the context of a traverse, while omitting demurrers from that portion of the rule).