State v. Gay

• Decision Date: 13 July 2007
• Docket Number: No. 2D05-2201.,2D05-2201.
• Citation: 960 So.2d 864
• Parties: STATE of Florida, Appellant, v. Samuel GAY, Appellee.
• Court: Florida District Court of Appeals

960 So.2d 864

STATE of Florida, Appellant, v. Samuel GAY, Appellee.

No. 2D05-2201.

District Court of Appeal of Florida, Second District.

July 13, 2007.

Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellant.

No appearance for Appellee Samuel Gay.

STRINGER, Judge.

The State appeals from the trial court's written order dismissing a felony count of possession of cocaine that was filed against Samuel Gay. Because the State's traverse established that there were disputed issues of material fact and established a prima facie case of constructive possession, the trial court erred in granting Gay's motion to dismiss. Therefore, we reverse and remand for further proceedings.

The State charged Gay with one count of felony possession of cocaine arising out of events that occurred on January 15, 2005. Gay subsequently filed a motion to dismiss the charge pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). In his motion, Gay alleged that on January 15, 2005, Deputy Rook of the Hillsborough County Sheriff's Office conducted a lawful traffic stop of the car Gay was driving. After stopping the car, Gay immediately got out of the driver's seat and began emptying his pockets onto the roof of his car. Rook called for back-up assistance and ordered Gay to stop what he was doing and step back to the patrol car. During this time, Rook was unable to see what the two passengers in the car were doing.

While Rook was patting down Gay, Deputy Penawert arrived to assist Rook. Penawert went to Gay's vehicle and asked the two passengers, both of whom were seated in the front passenger seat, to get out of the car to be interviewed. As Penawert looked inside the car at the passengers, he saw a small bag containing a white powdery substance on the center console. After the white powdery substance tested positive for cocaine, all three were arrested and charged with possession of the cocaine. Gay asserted in his motion that the cocaine was not on the center console when he got out of the car.

In response to Gay's motion, the State filed a traverse. In the traverse, the State specifically disputed Gay's assertion that the cocaine was not on the center console when Gay got out of the car. The State also alleged the additional facts that Gay was the registered owner and driver of the car and that both passengers in the car denied knowledge and possession of the cocaine. In addition, the State alleged that the cocaine was in plain view in the car and was within reach of all of the occupants of the car.

At the hearing on Gay's motion, after reviewing the motion and the traverse, the trial court told the State, "You know, I can deny the motion, but then he's going to prevail at a judgment of acquittal." After further argument, the trial court stated, "I don't think they are going to be able to establish whose cocaine it was either. . . . I mean, you can't prove it. . . . The fact is you cannot prove it." At the close of the hearing, the trial court granted Gay's motion and dismissed the charge against him. The State then brought this appeal, arguing that the trial court did not properly apply the law regarding motions to dismiss to the facts presented in this case. We agree.

Under rule 3.190(c)(4), a defendant may move for dismissal by alleging that "[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant." Under this rule, "it is the defendant's burden to specifically allege and swear to the undisputed facts in a motion to dismiss and to demonstrate that no prima facie case exists upon the facts set forth in detail in the motion." State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000).

When faced with a motion to dismiss, the State may file a traverse pursuant to rule 3.190(d). If the State files a traverse, it must, under oath and in good faith, either specifically dispute the defendant's material facts or allege additional material facts that are sufficient to establish a prima facie case. Id. at 112; State v. Dickerson, 811 So.2d 744, 746 (Fla. 2d DCA 2002); see also State v. Gutierrez, 649 So.2d 926, 927 (Fla. 3d DCA 1995) (noting that any denial of the material facts by the State in a traverse must be made in good faith and not based on speculation, conjecture, presumption, or assumption). In its traverse, the State need not adduce evidence sufficient to support a conviction. State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3d DCA 2000). Instead, it must only establish the "barest prima facie case." Dickerson, 811 So.2d at 746 (quoting State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984)). In doing so, the State may rely on circumstantial evidence. Dickerson, 811 So.2d at 746. In addition, the State is entitled to the most favorable construction of the evidence, and all inferences arising from the facts contained in both the motion to dismiss and the traverse must be resolved in favor of the State and against the defendant. Id.; Ortiz, 766 So.2d at 1142.

When considering the State's traverse, the trial court is not permitted to make factual determinations or to weigh the State's evidence. Ortiz, 766 So.2d at 1142. Thus, a trial court cannot dismiss criminal charges simply because it concludes that the case will not survive a motion for judgment of acquittal at trial. State v. Jaramillo, 951 So.2d 97, 99 (Fla. 2d DCA 2007); State v. Burrell, 819 So.2d 181, 182 (Fla. 2d DCA 2002); Dickerson, 811 So.2d at 747; State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999). Instead if the State in good faith disputes any material fact, denial of the motion to dismiss is mandatory. Kalogeropolous, 758 So.2d at 112.

Here, the trial court's decision to grant Gay's motion was incorrect for three reasons. First, there were clearly issues of material fact that were in dispute. Gay's motion to dismiss alleged that there had been no cocaine on the center console when he got out of the vehicle. However, the State specifically denied this alleged fact in its sworn traverse. On the basis of this factual dispute alone, the trial court should have denied Gay's motion. Kalogeropolous, 758 So.2d at 112.

Second, the State's traverse alleged sufficient additional facts to establish a prima facie case of possession. The State was proceeding against Gay on a theory of constructive possession. In order to prove constructive possession, the State had to prove that Gay had dominion and control over the cocaine and that he had knowledge of its presence. Brown v. State, 428 So.2d 250 (Fla.1983); State v. Snyder, 635 So.2d 1057, 1058 (Fla. 2d DCA 1994); State v. Reese, 774 So.2d 948, 949 (Fla. 5th DCA 2001).

Gay's motion alleged that the State could not prove that he had dominion and control over the cocaine. In response, the State alleged that Gay was the registered owner and driver of the vehicle and that both passengers had denied knowledge or possession of the cocaine. The State also alleged that the location where the cocaine was found was within reach of all of the occupants of the vehicle, including Gay. When contraband is found in plain view in a vehicle, dominion and...