State v. Alvarez
| Decision Date | 23 September 1981 |
| Docket Number | No. 80-1201,80-1201 |
| Citation | 403 So.2d 1143 |
| Parties | STATE of Florida, Appellant, v. Odillio ALVAREZ, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
William B. Plowman and Raymond R. Pines, Tampa, for appellee.
The trial court dismissed an information charging Alvarez with the offense of conspiracy to deliver marijuana in excess of 100 pounds. In so doing, the court found that the undisputed facts did not establish a prima facie case against Alvarez. We disagree and reverse.
Alvarez' motion to dismiss asserts that while he was present in Hilton Head, South Carolina with the other alleged co-conspirators, there is no evidence to show that an agreement existed between him and any other person to commit the crime of conspiracy to deliver marijuana. Allegedly Alvarez' language was Spanish and during all activities set forth in the motion he spoke no English with the exception of the word "Florida." The state's witness, one McFarland, who was present at the meeting in South Carolina, did not speak Spanish and was unable to understand what the appellee said.
The state filed a traverse stating that the conversation in South Carolina with the other co-conspirators took place at a possible marijuana unloading site in the vicinity of Hilton Head. Although appellee was only speaking Spanish, he was directing the activities of the other Spanish speaking individuals. The other co-conspirators interpreted for McFarland. In addition, the state added that Alvarez became frustrated in his attempted negotiations with a shrimp boat captain named Jones concerning the unloading of marijuana and terminated the discussion by ordering the group back to Florida.
The trial court adopted its own unique procedure on the motion to dismiss. If the state denied a material fact in appellee's motion to dismiss, the court would strike that fact and examine the rest of the motion to see if a prima facie case exists.
It should be pointed out that proceeding under rule 3.190(c)(4) is the equivalent of a civil summary judgment and the trial court may not try or determine factual issues nor substitute itself for the trier of fact and determine controverted issues of fact. State v. J.T.S., 373 So.2d 418 (Fla.2d DCA 1979). Here, the state filed a traverse denying under oath material facts alleged in the motion to dismiss, requiring automatic denial of the...
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Allen v. State
...A (c)(4) motion to dismiss in criminal cases in analogous to a motion for summary judgment in civil cases. State v. Alvarez, 403 So.2d 1143 (Fla. 2d DCA 1981). Denial of a motion for summary judgment on a particular count of the complaint based upon a ruling that the facts are disputed and ......
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State v. Carda, 85-1858
...of conflicting evidence or the credibility of witnesses. State v. Lewis, 463 So.2d 561, 563 (Fla. 2d DCA 1985); State v. Alvarez, 403 So.2d 1143, 1144 (Fla. 2d DCA 1981); State v. Fetherolf, 388 So.2d 38, 39 (Fla. 5th DCA 1980); State v. Bryant, 373 So.2d 708, 709 (Fla. 3d DCA 1979); State ......
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Smith v. State, 88-2435
...sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4). See State v. Carda, 495 So.2d 912, 914 (Fla. 3d DCA 1986); State v. Alvarez, 403 So.2d 1143, 1144 (Fla. 2d DCA 1981); State v. Bryant, 373 So.2d 708, 709 (Fla. 3d DCA 1979). The final judgments of conviction and sentences under review......
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State v. Martin, 81-2055
...the court had no alternative but to deny the motion without the taking of testimony. Fla.R.Crim.P. 3.190(d). See State v. Alvarez, 403 So.2d 1143 (Fla.2d DCA 1981); State v. J.T.S., 373 So.2d 418 (Fla.2d DCA 1979); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979). The central element of ......