State v. Covington, 3D06-3070.

• Decision Date: 17 October 2007
• Docket Number: No. 3D06-3070.,3D06-3070.
• Citation: 973 So.2d 481
• Parties: The STATE of Florida, Appellant, v. Ivory COVINGTON, II, Appellee.
• Court: Florida District Court of Appeals

973 So.2d 481

The STATE of Florida, Appellant, v. Ivory COVINGTON, II, Appellee.

No. 3D06-3070.

District Court of Appeal of Florida, Third District.

October 17, 2007.

Rehearing and Rehearing En Banc Denied February 14, 2008.

Bill McCollum, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.

Epstein Becker & Green and Joseph P. Klock, Jr., and Rashida M. Ivy, Miami, for appellee.

Before WELLS, and CORTINAS, JJ., and FLETCHER, Senior Judge.

WELLS, Judge.

The State of Florida appeals from an order granting Ivory Covington's motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). We reverse, finding the motion legally insufficient to support dismissal because the motion neither demonstrates that no disputed material facts exist, nor establishes that Covington could not have committed the charged offenses. See State v. Walthour, 876 So.2d 594, 595 (Fla. 5th DCA 2004) (confirming that the purpose of a rule 3.190(c)(4) motion is to determine whether the undisputed facts on which the State will rely to prove its case establish a prima facie case that would permit a jury to find the defendant guilty of the crime charged).

On December 14, 2005, the State filed a four count information charging Covington with possession of cocaine with intent to sell, manufacture or deliver (count I); resisting an officer with violence (count II); possession of cannabis (count III); and possession of a firearm by a convicted felon (count IV). Covington moved to dismiss the information, claiming that the State could not make a prima facie case against him on these charges because the facts detailed in two affidavits attached to his motion were not in dispute and confirmed that he had no drugs or firearm in his possession; that he had no access to the place where the drugs and firearm were found; and that he did not resist arrest.

On the morning of the hearing of the motion to dismiss, the State filed a traverse denying Covington's factual assertions and offering the sworn statement of the officers who arrested Covington to demonstrate that factual disputes existed and that a prima facie case against Covington could be made. The traverse was stricken as untimely and insufficient, and the motion to dismiss granted because the trial court concluded that the facts detailed in the affidavits of Vincent Herout and Frederick James, which Covington relied on to support the motion, were undisputed and exculpated him of all charges. We do not agree.

In State v. Ortiz, 766 So.2d 1137, 1141-42 (Fla. 3d DCA 2000), this court noted that rule 3.190(c)(4) motions to dismiss are treated like summary judgment motions in civil cases:

A motion to dismiss, made pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), must allege and establish that "there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant." State v. Kalogeropolous, 758 So.2d 110, 111 (Fla.2000). A motion to dismiss in a criminal case is analogous to a motion made for summary judgment in civil cases, and as such "[b]oth should be granted sparingly." State v. Bonebright, 742 So.2d 290, 291 (Fla. 1st DCA 1998); Kalogeropolous, 758 So.2d at 111. See also State v. McQuay, 403 So.2d 566, 567-68 (Fla. 3d DCA 1981) (stating that "[a] motion to dismiss should be granted only where the most favorable construction to the state would not establish a prima facie case of guilt. And if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied." (emphasis added) (citation omitted)).

In filing this kind of motion, a defendant bears the burden of showing the absence of a material factual dispute and that the facts fall short of a prima facie case of the crime charged. See State v. Sammons, 889 So.2d 857, 858 (Fla. 4th DCA 2004). Where the motion fails to make such a showing, it is legally insufficient and may be denied without a State response. See id.; State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999) (finding that the "State's failure to file a traverse is not, in itself, fatal to a criminal charge, as the trial court must still consider the facts alleged in the motion to dismiss to determine whether a prima facie case has been established"); State v. Purvis, 560 So.2d 1296, 1298 (Fla. 5th DCA 1990) ("If the undisputed facts as alleged in the motion to dismiss are legally insufficient, then any response from the State would be superfluous, and the motion may be summarily denied."). Here, we find that Covington's motion was legally insufficient and should have been summarily denied even in the absence of a State response.

Vincent Herout's affidavit establishes no facts whatsoever relevant to the charges against Covington and does not support dismissal. In fact, the affidavit establishes only that Herout was in no position to testify about whether any contraband was found on Covington at the time of his arrest or whether Covington resisted arrest. According to the affidavit, Herout was in bed on the evening of November 15, 2005, when Covington burst into his bedroom and hid under the bed. As soon as the police entered, Herout went into the living room where he remained during the entire time (ten to fifteen minutes) the police were in the bedroom—behind a closed door—with Covington. Under the circumstances, Herout's affidavit could not establish as undisputed fact either that no contraband was found on Covington at the time of his arrest or that Covington did not resist arrest.¹

Frederick James' affidavit also establishes no facts to support dismissal. James' affidavit confirms only that some contraband and a firearm were found in an exterior hallway approximately thirty feet from the apartment where Covington was found hiding. The affidavit does not establish that Covington had no access to the place where these items were found as James so boldly states.

According to James, after being stopped, by the police on the ground floor of the apartment complex where he lived, he saw Covington and another man on the third floor walkway of the complex running in a westerly direction. After Covington's companion ducked into an apartment, James lost sight of Covington and did not see him again until after he had been arrested and was being removed from another apartment which was, coincidentally, the same apartment occupied by James and Herout. Although James could not see where Covington had gone before entering his apartment, he nonetheless surmised from snippets of overheard conversations that Covington did not go near the place where some drugs and a firearm were later found:

I saw the man that was with [Covington] duck into a third floor window of the last apartment Ion the walkway] that runs east-west (See Position "C")[²], [which walkway is] parallel to the [walkway on which] ... my apartment [is located] on the south side of the building (See Position "E"). [Covington] kept running to the west, down the cut and disappeared, presumably along the outside walkway that runs along the backside of the apartments that run northsouth on the third floor (See Position

At that point, someone on the first floor yelled: "We got him. We got him." A voice came over the radio and said. "No. Upstairs." Some of the men then ran upstairs.

Whoever was talking on the radio and giving directions apparently could see [Covington] because he ran along the back of the apartment complex. . .

The voice kept directing the men to the side of the building...