State v. Fordham, 84-361
| Decision Date | 14 March 1985 |
| Docket Number | No. 84-361,84-361 |
| Citation | 465 So.2d 580,10 Fla. L. Weekly 660 |
| Parties | 10 Fla. L. Weekly 660 STATE of Florida, Appellant, v. Dan FORDHAM, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
Jack Singbush, P.A., Ocala, for appellee.
This is an appeal from an order granting a motion to dismiss a criminal charge. Florida Rule of Criminal Procedure 3.190(c)(4) provides that a criminal charge will be dismissed if an accused files a sworn motion stating the facts as set out in the motion are undisputed, that they are the facts upon which the charge is based and that those facts do not establish a prima facie case of guilt.
As has been said clearly and often, the accused must swear to the motion. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); Fla.R.Crim.P. 3.190(c)(4). Equally clear is that the trial court should not decide or reconcile disputed issues of fact raised by the state's traverse or inherent in the defendant's motion. State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985); State v. Sheppard, 401 So.2d 944 (Fla. 5th DCA 1981); State v. Pettis, 397 So.2d 1150 (Fla. 5th DCA 1981); State v. Upton; State v. Featherolf, 388 So.2d 38 (Fla. 5th DCA 1980); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980). All questions and inferences from the facts are resolved in favor of the state, like the non-moving party in a civil summary judgment proceeding. State v. Fuller; State v. Patel, 453 So.2d 218 (Fla. 5th DCA 1984); State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA 1981); State v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981).
Here the motion was not sworn to and the affidavit which appellee signed saying "To the best of my knowledge, based upon my reading of the above depositions, the facts and matters alleged in said motion are true and correct since they derive from the sworn statements of depositions in this cause" is not sufficient to satisfy the rule requirements. This declaration is nothing more than a non sequitur. Additionally, the oath of the accused must be based upon his own knowledge of the facts and not "upon information and belief." State v. Upton.
The order is reversed and this cause remanded for trial.
REVERSED.
To continue reading
Request your trial
-
State v. Gensler
...and resolve. The trial court should not decide disputed issues of fact inherent in the defendant's motion to dismiss. State v. Fordham, 465 So.2d 580 (Fla. 5th DCA 1985), and cases cited. Whether Gensler's conduct was reckless and the proximate cause of death of the victim are jury issues n......
-
State v. Palmore
...Procedure 3.190(c)(4) requires the very procedure he followed. 1 See State v. Davis, 243 So.2d 587 (Fla.1971); State v. Fordham, 465 So.2d 580, 581 (Fla. 5th DCA 1985). Fordham dictates that the accused swear to facts based upon his own knowledge, not upon "information and belief." Carroll ......
-
State v. Gomez, 86-1550
...should be specifically alleged and the motion sworn to."4 See State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. Fordham, 465 So.2d 580 (Fla. 5th DCA 1985).5 State v. Patel, 453 So.2d 218, 219, n. 1 (Fla. 5th DCA 1984); Goodmakers v. State, 450 So.2d 888 (Fla. 2d DCA 1984); State ......
-
Prestige Rent-A-Car, Inc. v. Advantage Car Rental and Sales, Inc. (ACRS), RENT-A-CA
...the affidavit from Pieroni states that it was based on "information and belief," which is admittedly insufficient. See State v. Fordham, 465 So.2d 580 (Fla. 5th DCA 1985). However, review of an order denying a motion to dissolve a prejudgment writ of replevin is based not on the record befo......