State v. Elliott, 1D05-4632.
| Decision Date | 15 November 2006 |
| Docket Number | No. 1D05-4632.,1D05-4632. |
| Citation | 941 So.2d 567 |
| Parties | STATE of Florida, Appellant, v. Joseph Wade ELLIOTT, Appellee. |
| Court | Florida District Court of Appeals |
Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellant.
Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellee.
The State appeals the trial court's grant of appellee's Motion to Dismiss filed pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure. The State filed a traverse. Because the State's traverse creates a dispute as to the material facts of the case, we reverse.
Appellee was charged by information for two counts of possession of a controlled substance, Xanax and Ketamine, on March 22, 2005. Appellee filed a motion to dismiss asserting that the material facts did not establish a prima facie case of guilt. In particular, the motion argued that the record did not contain a scintilla of evidence that appellee knew the illicit nature of the package's content. The State responded by filing a traverse disagreeing with some of appellee's assertions and introducing evidence that appellee knew of the illicit nature of the package's content.
Where the State's traverse creates a dispute as to the material facts in a case, an automatic denial of the motion to dismiss must follow. See State v. Aylesworth, 666 So.2d 181, 182 (Fla. 2d DCA 1995); see also Fla. R.Crim. P. 3.190(d).
In this case, the disputed material fact is whether or not appellee had knowledge of the illicit nature of the contents of the package he possessed when he was arrested. While appellee asserts it is undisputed that he did not know what the package contained, the State argues that its traverse contains evidence which implies appellee's knowledge. Specifically, the State's traverse included the fact that the package was found on appellee's person, inside his partially-zipped jacket, and it referred to a conversation between appellee and a confidential informant which tended to show appellee knew of the illicit nature of the package's content. When appellee picked up the package from the confidential informant, the informant stated:
Ok, well to let you know what's happening. I have a meeting [with] my attorney tomorrow. [T]hey want me to meet with these guys from Customs. They're trying to put the squeeze on me. [Y]ou know about things. [T]hey're not saying I'm going to go to jail or...
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...creates a dispute as to the material facts in a case, an automatic denial of the motion to dismiss must follow. See State v. Elliott, 941 So.2d 567 (Fla. 1st DCA 2006). The State is not required to oppose a defendant's motion to dismiss with "affidavit testimony" in order to avoid dismissal......
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...automatic denial of the motion to dismiss must follow.” State v. Taylor, 16 So.3d 997, 999 (Fla. 5th DCA 2009) (citing State v. Elliott, 941 So.2d 567 (Fla. 1st DCA 2006) ). Consequently, the trial court's order granting the motion to dismiss was in error. Accordingly, the order is reversed......
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...(Fla. 1st DCA 2008) When the state files a traverse that creates an issue of fact, the court must deny a c(4) motion. State v. Elliott, 941 So. 2d 567 (Fla. 1st DCA 2006) Second District Court of Appeal (See Hyden v. State , 117 So. 3d 1 (Fla. 2d DCA 2011) for discussion of when an un-notar......