State v. Giesy, s. 70--575
| Decision Date | 05 February 1971 |
| Docket Number | 70--576,Nos. 70--575,s. 70--575 |
| Citation | 243 So.2d 635 |
| Parties | STATE of Florida, Appellant, v. William GIESY, Appellee. STATE of Florida, Appellant, v. Robert C. LYONS, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., Tallahassee, and Rodney Durrance, Jr., Asst. Atty., Gen., West Palm Beach, for appellant.
Walter N. Colbath, Jr., Public Defender, and Alan R. Parlapiano, Asst. Public Defender, West Palm Beach, for appellees.
These two cases involve identical facts and were consolidated on appeal. In each case the order appealed had dismissed an information charging aggravated assault, the order of dismissal indicating that it was entered pursuant to Rule 1.190(c)(4) CrPR, 33 F.S.A., because the undisputed facts did not establish a prima facie case of guilt against the defendant.
Although the respective motions to dismiss purported to be filed pursuant to Rule 1.190(c)(4) CrPR, it is manifest that each sought to establish the affirmative defense of former jeopardy. The affidavit which each defendant filed in support of his motion to dismiss stated that such defendant had theretofore been convicted in the Municipal Court of the City of Melbourne of the offense of malicious destruction of private property, and that such conviction was based upon the same acts or episode which gave rise to the filing of the information for aggravated assault. These facts were deemed admitted when the state failed to file a traverse under oath specifically denying them. Rule 1.190(d) CrPR. There was no evidence submitted other than these admitted facts.
The state contends that the order of dismissal in each case was based upon the court's erroneous determination that the prior municipal conviction amounted to former jeopardy. We agree that this was the basis upon which the court entered the order of dismissal, and we agree with the state that the prior municipal conviction did not constitute former jeopardy so as to bar prosecution for the substantive offense of aggravated assault as charged in the information. See State v. Conrad, Fourth District Court of Appeal, 243 So.2d 174, opinion filed January 27, 1971.
Appellees contend that the order dismissing the information in each case was not based upon a finding of former jeopardy (although this was clearly the only defense set up in the motion to dismiss) but was mandatorily required by Rule 1.190(c)(4) CrPR because the state, having failed to traverse the motion to dismiss, had thereby failed to establish any prima facie evidence of guilt of the crime charged in the information. The contention made by appellees gives us concern that there may be some misconception among...
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Brady v. State, 86-1647
...the truth of the factual statements made in the motion to dismiss. State v. Smith, 376 So.2d 261 (Fla. 3d DCA 1979); State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971).4 Both parties stipulated that this issue was dispositive of the matter. Zeigler v. State, 471 So.2d 172 (Fla. 1st DCA 1985)......
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State v. Carda, 85-1858
...428 (Fla. 2d DCA 1981); Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977); State v. Giesy, 243 So.2d 635, 636 (Fla. 4th DCA 1971); Fla.R.Crim.P. 3.190(d). We know of no procedure authorizing a trial court to require the state to supplement a travers......
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Wright v. State
...where the facts are not in dispute, in a sense somewhat similar to summary judgment proceedings in civil cases . . . ." State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971). If the state wishes to avoid the effect of such motion, it It cannot logically be contended that appellant has not prese......
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State v. Jones
...in a civil case. See Ellis v. State, 346 So.2d 1044, 1045 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977); State v. Giesy, 243 So.2d 635, 636 (Fla. 4th DCA 1971). To withstand such a motion, the state need establish only a prima facie case. State v. Pentecost, 397 So.2d 711, 712 (Fla......