Ellis v. State, DD-127

• Decision Date: 27 May 1977
• Docket Number: No. DD-127,DD-127
• Citation: 346 So.2d 1044
• Parties: Spencer P. ELLIS, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1044

346 So.2d 1044

Spencer P. ELLIS, Jr., Appellant, v. STATE of Florida, Appellee.

No. DD-127.

District Court of Appeal of Florida, First District.

May 27, 1977.

Rehearing Denied June 30, 1977.

Leo A. Thomas, Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.

Robert L. Shevin, Atty. Gen., and Patti L. Englander, Asst. Atty. Gen., for appellee.

BOYER, Chief Judge.

Appellant, having been charged by amended information with possession of heroin and possession of more than five grams of marijuana, moved to dismiss the amended information, pursuant to Fla.R.Crim.P. 3.190(c)(4), on the ground that the undisputed material issues of fact failed to establish a prima facie case. The State, in its traverse filed pursuant to Fla.R.Crim.P. 3.190(d), merely denied that the undisputed material facts did not establish a prima facie case. After a hearing, the trial court denied the motion to dismiss. Appellant thereupon entered a plea of nolo contendere to the charges, expressly reserving his right to appeal the denial of his motion to dismiss which is the sole issue with which we are concerned in this appeal.

Before delving into the facts of the case, we find it desirable to briefly discuss the nature and purpose of a 3.190(c)(4) proceeding. (We here address the procedural issue which did not appear, but was mentioned in footnote (1), in State v. Snowden, Fla.App., 345 So.2d 856, Opinion filed May 11, 1977.) In State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971), our sister court explained that the purpose of the rule was "to permit a pretrial determination of the law of the case where the facts are not in dispute, in a sense somewhat similar to summary judgment proceedings in civil cases (except that a dismissal under the rule is not a bar to a subsequent prosecution)." The proceeding is designed to create neither a trial by affidavit nor a dry run of a trial on the merits, nor is it supposed to serve as a "fishing expedition".

The question arises: Upon whom does the burden of proof fall under the rule? Initially, the defendant in his sworn motion must allege that the material facts of the case are undisputed, describe what the undisputed material facts are, and demonstrate that the undisputed facts fail to establish a prima facie case or that they establish a valid defense (either an affirmative defense or negation of an essential element of the charge). Obviously, if the undisputed facts as alleged in the motion to dismiss do not meet such burden then any response from the State would be superfluous, and the motion may be summarily denied. If, however, the allegations of the motion meet the above test, then the burden shifts to the State. If the State wishes to avoid the effect of the motion, then its traverse or demurrer, as described in Rule 3.190(d), must place a material issue of fact in dispute or establish that the undisputed facts do establish a prima facie case. In the former instance, denial by the State under oath in its traverse of a specific material fact alleged in the motion to dismiss requires automatic denial of the motion to dismiss. Conversely, those facts alleged in the motion to dismiss which are not specifically denied by the State are, for the purpose of the motion, deemed admitted. For the State's traverse to effectively deny a material fact alleged in the motion to dismiss, it need not be based in whole or in part on the personal knowledge of the state attorney who files it nor must it be buttressed by the affidavit of the victim or other witness. State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975). While the rule does not require the State to allege any facts which negate the factual matters set forth in the motion to dismiss, the State must nevertheless, when it purports to deny material facts, deny those facts with specificity. See State v. News-Press Pub. Co., 338 So.2d 1313, 1318 (Fla. 2d DCA 1976). When a motion to dismiss meets the criteria mentioned above and causes the burden of proof to shift to the State, then the State's failure to file a traverse will mandate granting the motion. Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974). It should go without saying that any denial by the State must be in good faith, and not be based upon speculation, conjecture, presumption nor assumption. It has been held, for example, that a traverse which merely states, "the State traverses to the defendant's sworn motion to dismiss" is insufficient under the rule as a matter of law. State v. Kemp, 305 So.2d 833 (Fla.3d DCA 1975).

Sub judice, the State's traverse did not deny that any material fact was undisputed, but merely denied that the undisputed material facts did not establish a prima facie case. Having failed to specifically deny the facts as alleged in the motion to dismiss, the State is deemed to have admitted those facts. The rule, however, is silent as to whether the State in its traverse must list those material facts, either disputed or undisputed, upon which it will rely at...