That Does Not Sound Like A Crime: How to Strategically Use a Motion to Dismiss

In Florida, a defendant may challenge the charging document via a (c)(4) motion to dismiss. Florida Rule of Criminal Procedure 3.190(c)(4) defines the nature of the motion.[i] The motion is like a summary judgment in civil court but does not carry the same authority as a “judgment” does in civil or criminal court.[ii] Nonetheless, the purpose of the rule is simple: no case should unnecessarily expend scarce judicial resources once the court has determined that there are no material facts in dispute, and that the undisputed facts do not establish a prima facie case of guilty against the defendant.[iii]

Unlike many jurisdictions, Florida has a very liberal pre-trial discovery practice which allows for unearthing all the facts surrounding an incident. Like anything in life, one just has to know where to look or what rocks to turn over. Any defense attorney worth his or her salt has a solid understanding of the facts of the case by the end of discovery.

Understanding the facts and the law is only half the battle in any defense. The defense attorney must know how to use the procedural rules to the client’s benefit whenever possible. One of those instances is when to deploy a motion to dismiss if the opportunity presents itself.

In general, there are not a lot of good reasons why an accused should not attempt to make the requisite showing that the Information (also known as the charging document) should be dismissed. If the defendant succeeds, then justice has been served; if the defendant fails, then all the parties (including the court) and the system is no worse off than before the attempt. “You miss 100% of the shots you don’t take.” Wayne Gretzky, “the Great One,” Hall of Fame, Canadian Hockey Player.

There are a few technical components to a motion to suppress (outside of the caption, “wherefore” clause, certificate of service, and signature block). A motion pursuant to this rule should state specifically state all the known facts. The motion also needs to move on the grounds that there are no material disputed facts, and the undisputed facts do not establish a prima facie case of guilt against the defendant or do establish a complete defense. State v. Reese, 774 So.2d 948, 949 (Fla. 5th DCA 2001) (“the burden [is on the movant] to allege that the material facts of the case [a]re undisputed, describe what the material facts [a]re, and demonstrate that the undisputed facts either (1) fail [ … ] to establish a prima facie case, or (2) establish [ … ] a valid defense”); and State v. Anderson, 536 So.2d 1166 (Fla. 2d DCA 1988). The (c)(4) motion also works with affirmative defenses that are apparent on the face of the record (for instance, consent, self-defense, duress…etc.)

The facts on which the (c)(4) is based should be specifically alleged, preferably in numbered paragraphs with no more than one material averment (i.e., facts) to a paragraph. Where appropriate, the pleader should cite to sworn statements, deposition transcripts, police reports, and the like. Statements made in such documents are admissions by agents of the state, binding against the state; and their citation in the motion lends credence to the pleader’s claim that “there are no material disputed facts.”[iv]

The (c)(4) motion to dismiss must be sworn to be valid. Unsworn statements of attorneys are not evidence.[v] A motion sworn to by defense counsel is subject to summary dismissal;[vi] as is a motion in which the affiant swears that the facts averred are true “to the best of my knowledge and belief.”[vii] The jurat (the place on the document where the person swears the facts are true) must reflect that the affiant has been placed under oath, and that the facts to which he swears in the motion are true.[viii]

Courts sometimes believe that the (c)(4) must be sworn by the accused. This is not true. The motion can be sworn by anyone who has “first-hand knowledge.” For instance, an eyewitness to the entire robbery watches the event and sees that the accused was not involved. The eyewitness can swear to the facts that the identity of the true perpetrator in a motion to dismiss.[ix]

In certain instances, an accused will assert that there was no intent to commit a crime and that the facts do not establish the intent. Intent refers to mens rea which is Latin for “criminal intent.” On these occasions when the accused asserts a defense based on lack of knowledge or intent, courts are generally unwilling to resolve the case via a (c)(4) motion dismiss. The idea is this: whether the accused did or did not have requisite mens rea or criminal intent to commit the crime is almost always a matter for the trier of fact.[x]

A facially insufficient (both legally and factually) motion should be struck by the court without further ado. In response to the filing of a (c)(4), the state may file either a traverse or a demurer. A traverse says, in effect, “the movant’s factual recitation is false or incomplete; there remain issues of fact whether he committed the crime” and adds those facts for the court’s consideration. Essentially, a dispute remains. On the other hand, a demurrer says assume arguendo that if the movant’s factual recitation is true and complete, then he is not entitled to dismissal as a matter of law. The court must review the facts in the light most favorable to the non-moving party.[xi] Contrary to popular usage, there is no such thing as a “Traverse-Demurrer.”[xii]

Fla. R. Crim. P. Rule 3.190(d) is somewhat unclear. The subsection states:

The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in such traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss. The demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.[xiii]

Although there is language above, the court should not “receive evidence on any issue of fact necessary” to resolve a (c)(4) motion for two reasons. First, “a motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.” Factfinding is usually the exclusive function of the jury; the ruling on a motion to dismiss is a ruling as a matter of law.[xiv] The distinction between the two is important.

Sometimes the motion to dismiss will not result in an outright dismissal, but a reduction of charges.[xv] The prima facie evidence is does not establish aggravated battery, but simple battery.

Lastly, if a (c)(4) motion is granted, the state can refile the charges because the dismissal does not have the effect of an adjudication on the merits like a judgment of acquittal or a summary judgment.[xvi] In other words, there is no Fifth Amendment “Double Jeopardy” problem.

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com

If you are looking for someone to guide you through the criminal justice system, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss this matter and any other criminal justice matter.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela

Image source: Photo by Tingey Injury Law Firm on Unsplash

No. 20-015


[i] See State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000) (“The procedure is similar to summary judgment proceedings in civil cases, but a dismissal under this rule is not a bar to subsequent prosecutions”); State v. Reese, 774 So.2d 948, 950 (Fla. 5th DCA 2001) (“A motion to dismiss in a criminal case is analogous to a motion made for summary judgment in civil cases”); State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979); State v. Snyder, 635 So.2d 1057, 1059 (Fla. 2d DCA 1994) (Schoonover, J., dissenting on other grounds); and State v. Diaz, 627 So.2d 1314 (Fla. 2d DCA 1993). 

[ii] See Florida Rule of Civil Procedure Rule 1.510 (Summary Judgment). (“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”)

[iii] Fla. R. Crim. P. 3.190(c)(4).

[iv] State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974).

[v] Unsworn statements of attorneys are not evidence and may not be considered as evidence in Florida by either trial or appellate courts. There are five (5) types of acceptable evidence forms in Florida: admissions, stipulations, testimony (or affidavits), judicial notice, and/or self-authenticating documents. See generally Ehrhardt, Florida Evidence §605.1 (Oath or Affirmation). See also Smith v. Smith, 64 So.3d 169 (Fla. 4th DCA 2011); H.K. Development, LLC. V. Greer, 32 So.3d 178 (Fla. 1st DCA 2010); Faircloth v. Bliss, 917 So.2d 1005 (Fla. 4th DCA 2006); Arnold v. Arnold, 889 So.2d 215 (Fla. 2d DCA 2004);  Brown v. School Bd. of Palm Beach County, 855 So.2d 1267 (Fla. 4th DCA 2003); Arroyo-Munoz v. State, 744 So.2d 536, 537 (Fla. 2d DCA 1999)(“A prosecutor may not give unsworn testimony regarding facts outside the record”); Lewis v. State, 653 So.2d 1107, 1108 (Fla. 3d DCA 1995) (Trial court erred in relying on unsworn testimony in direct criminal contempt conviction); Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995) (Permitting attorneys to testify without taking an oath was error); Sabina v. Dahlia Corp., 650 So.2d 96 (Fla. 2d DCA 1995); Blimpie Capital Venture, Inc. v. Palms Plaza Patners, Ltd., 636 So.2d 1994 (Fla. 2d DCA 1994); Bartholomew v. Bartholomew, 611 So.2d 85 (Fla. 2d DCA 1992); State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991)(Counsel’s representations as to the facts at a hearing on a motion to dismiss could not establish the underlying facts “An attorney’s unsworn statement does not establish a fact in the absence of a stipulation”); Schneider v. Currey, 584 So.2d 86, 87 (Fla. 2d DCA 1991) (Unsworn factual allegations contained in a memorandum of law presented to the trial court “are not facts that a trial court or this court can acknowledge.”); Houck v. State, 421 So.2d 1113 (Fla. 1st DCA 1982) (Unsworn testimony by Assistant State Attorney during suppression hearing was not competent); and Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982) (Improper for attorney to make unsworn statements of fact at hearing to vacate default: “[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If an advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.”)

[vi]  State v. Lewis, 463 So.2d 561 (Fla. 2d DCA 1985).

[vii]  State v. Justo, 555 So.2d 893 (Fla. 3d DCA 1990).

[viii] It is common misconception that the motion must be sworn to before a notary. Although that is the preferable method, the judge can swear the client in court for the purpose of swearing to the facts contained within the motion. See Styron v. State, 662 So.2d 965 (Fla. 1st DCA 1995).

[ix] See, e.g., State v. Betancourt, 616 So. 2d 82 (Fla. 3d DCA 1993) (motion sworn to by father/victim of defendant).

[x] There is the rare case where the defendant is accused of a specific intent crime (meaning that the defendant must have had a fully formed intent to commit this crime) where a (c)(4) motion to dismiss may be useful. See State v. Shorette, 404 So.2d 816 (Fla. 2d DCA 1981); and State v. Stenza, 453 So.2d 169 (Fla. 2d DCA 1984). See, e.g., State v. Jones, 642 So.2d 804 (Fla. 5th DCA 1994); State v. Garantiva, 603 So.2d 135 (Fla. 3d DCA 1992); State v. Duran, 550 So.2d 45 (Fla. 3d DCA 1989); State v. Atkinson, 490 So.2d 1363 (Fla. 5th DCA 1986); State v. Hricik, 445 So.2d 1119 (Fla. 2d DCA 1984). 

[xi] State v. Randolph, 287 So.3d 686 (Fla. 5th DCA 2019). See also State v. Velez, 555 So.2d 1251 (Fla. 3d DCA 1989).

[xii] Like a leprechaun or a unicorn, there is no such legal entity as the “traverse-demurrer.” It appears that the “traverse-demurrer” is a lazy concoction created because a prosecutor failed to select one of the two options concerning the document he or she was going to file in response to the (c)(4). Mutually exclusive, the two responses are completely different and cannot occupy the same space at the same time. It would be like crossing the streams in Ghostbusters.

[xiii] It is important to note that a traverse or a demurrer must be in writing. It is a pleading an cannot be orally done in open court. See Fla. R. Crim. P. Rule 3.190 (d). The failure to object to an oral traverse is an error attributable to the defense attorney (and possibly subject to Fla. R. Crim. P. Rule 3.850). See State v. Teehan, 557 So.2d 89 (Fla. 3d DCA 1990). The State must specifically deny a material fact. General denials are not legally acceptable and the motion to dismiss should be granted. See State v. Kemp, 305 So.2d 833 (Fla. 3d DCA 1974); and Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974). Conversely, if the State does not specifically deny a fact, the fact is deemed admitted.  (And therefore, the State cannot go back and argue around it later or go with a different theory of prosecution).  Homicides have been dismissed because the state did not properly plead a traverse and facts were deemed admitted. See State v. Kalogeropolous, 758 So.2d 110 (Fla. 2000). Further, if the trial court learns later on at trial that the traverse was filed in bad faith, the court can impose sanctions. “If the State files a traverse, it must, under oath and in good faith, either specifically dispute the defendant’s material facts or allege additional material facts that are sufficient to establish a prima facie case. Id. at 112; State v. Dickerson, 811 So.2d 744, 746 (Fla. 2d DCA 2002); see also State v. Gutierrez, 649 So.2d 926, 927 (Fla. 3d DCA 1995) (noting that any denial of the material facts by the State in a traverse must be made in good faith and not based on speculation, conjecture, presumption, or assumption).”

[xiv] See generally State v. Miller, 710 So.2d 686 (Fla. 2d DCA 1998); and State v. Presume, 710 So.2d 604 (Fla. 4th DCA 1998).

[xv] State v. Smulowitz, 482 So.2d 1388 (Fla. 3d DCA 1986). See also State v. Hankerson, 482 So.2d 1386 (Fla. 3d DCA 1986); and Simmons v. State, 551 So.2d 607 (Fla. 5th DCA 1989).

[xvi] State v. Lindemuth, 193 So.3d 55 (Fla. 3d DCA 2016).

Published by The Trial Dog

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

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