State v. McQuay
| Decision Date | 08 September 1981 |
| Docket Number | No. 80-2010,80-2010 |
| Citation | 403 So.2d 566 |
| Parties | The STATE of Florida, Appellant, v. James McQUAY, Alfred Cunningham, Michael Shipman, Antonio Allen a/k/a TorrenceAllen and Richard Allen Bowe, Appellees. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen. and Alan T. Lipson, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, Eugene F. Zenobi, Miami, for appellees.
Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
The State appeals from an order granting the sworn motions to dismiss of the defendants, James McQuay, Alfred Cunningham, Michael Shipman, Antonio Allen, and Richard Bowe.
At about 5:00 A.M. on July 17, 1980, the victim, Deborah Carter (a Dade County school bus driver), was driving her bus northbound on N.W. 22nd Avenue, Miami, when she exited her bus to remove certain obstructions in the street. At this time, approximately ten males (including the present defendants), who were carrying bats and knives and one of whom was brandishing a pistol, boarded the empty bus and told the victim to take them to 84th Street. After traveling about one and one-half blocks, two of the group got off the bus, and after a total of about thirteen blocks of travel the bus approached a police roadblock (due to recent riots there was a curfew in effect). After coming to a stop, the victim ran off the bus and those on the bus were ordered off and were arrested. Upon searching the bus, a pistol, two knives and a baseball bat were found. Thereafter, the defendants were charged with burglary of a conveyance, kidnapping, aggravated assault, unlawful possession of a firearm while engaged in a criminal offense, and the unlawful possession of weapons while engaged in a criminal offense.
Pursuant to a motion to dismiss all charges for failure to establish a prima facie case filed by defendant Bowe, all other defendants subsequently adopted Bowe's motion and the State thereupon filed traverses to the motions and a demurrer. Following a hearing, the trial judge entered an order dismissing the possession and aggravated assault counts, reducing the burglary of a conveyance count to a second degree felony, and reducing the kidnapping count to false imprisonment. Following the trial court's rulings (reducing and dismissing certain counts), the State has filed this appeal.
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. See: State v Smith, 348 So.2d 637 (Fla.2d DCA 1977). And if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied. See: State v. Hires, 372 So.2d 183 (Fla.2d DCA 1979). If the State files a traverse specifically denying under oath a material fact alleged in the motion, a denial of the motion is required. See: Fla.R.Crim.P. 3.190(d), and State v. J. T. S., 373 So.2d 418 (Fla.2d DCA 1979).
We find no error in the reducing of the burglary charge, a life felony (Count I), to a charge of burglary of a conveyance while occupied, a second degree felony.
It was error to reduce the charge of kidnapping (Count II) to a charge of false imprisonment. Although the defendants argued that the confinement was of a minimal...
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Torrence v. State
...that the accused assaulted the victim with a deadly weapon. Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978). See also State v. McQuay, 403 So.2d 566 (Fla. 3d DCA 1981). An allegation that the accused "carried a firearm" is insufficient in this regard. The remaining question, however, is whe......
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Davis v. Sec'y, Fla. Dep't of Corr.
...holds burden of proving suppression will be granted) State v. Amal, 941 So. 2d 556, 558 (Fla. 3d DCA 2006) (quoting State v. McQuay, 403 So. 2d 566, 567-68 (Fla. 3d DCA 1981)) (discussing burden involved with respect to motion to dismiss).As to Defendant's claims that counsel failed toreque......
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State v. Espinoza
...could find guilt, such a motion must be denied." State v. Terma, 997 So.2d 1174, 1177 (Fla. 3d DCA 2008) (quoting State v. McQuay, 403 So.2d 566, 567–68 (Fla. 3d DCA 1981) ). Further, when considering a motion to dismiss pursuant to Rule 3.190(c)(4), the trial court may not make factual det......
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Marrero v. State, 84-1138
...the court to invade the fact-finder's province. Where material facts are controverted the motion must be denied. State v. McQuay, 403 So.2d 566 (Fla. 3d DCA 1981). On the other hand, a defendant moving for a judgment of acquittal admits facts in evidence adduced by the state and also admits......