State v. Merritt, 80-1293
| Citation | 394 So.2d 531 |
| Decision Date | 24 February 1981 |
| Docket Number | No. 80-1293,80-1293 |
| Parties | The STATE of Florida, Appellant, v. James MERRITT, Appellee. |
| Court | Court of Appeal of Florida (US) |
Janet Reno, State Atty. and Stephen V. Rosin, Asst. State Atty. and Bruce H. Lehr, Legal Intern, for appellant.
Carl Masztal, Miami, for appellee.
Before BARKDULL, HENDRY and NESBITT, JJ.
The state brings this appeal from an order dismissing an information filed against James Merritt.
On the basis of self-defense, defendant James Merritt filed a sworn motion to dismiss an information, charging him with attempted first degree murder and the unlawful possession of a firearm while engaged in a criminal offense. In response thereto, the State filed a traverse, specifically denying the factual allegations of the defendant's motion. The traverse commented that although the defendant stated that . At the hearing on the motion, the trial court considered the motion, the traverse, and the arrest affidavit. Just prior to dismissing the case, defense counsel stated that "... the State cannot find its witnesses, and neither can I; ... never supplied a correct address to me".
It was error to grant the defendant's sworn motion to dismiss where the State filed a sworn traverse specifically denying the material facts alleged by the defendant. The language of Florida Rules of Criminal Procedure 3.190(d) is to the effect that "a motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss". (emphasis supplied) This language is mandatory. See: Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). If the case was dismissed because of the assertion of defense counsel that "... the State cannot find its witnesses", then the trial court was in error. See: Knight v. State, 373 So.2d 52 (Fla. 4th DCA 1979). Also, if the dismissal was based upon the failure of the State to provide the defense with the correct address of a witness this too would be an insufficient ground for dismissal. See: Richardson v....
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State v. Carda, 85-1858
...DCA 1982) (defendant not entitled to dismissal on ground that three police officers failed to appear for deposition); State v. Merritt, 394 So.2d 531 (Fla. 3d DCA 1981) (dismissal could not be based on defense counsel's assertion that state could not find its witnesses). The state is not ob......
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State v. Mesa
...obliged, at pain of dismissal, even to produce prosecution, much less defense, witnesses for deposition or trial. State v. Merritt, 394 So.2d 531 (Fla. 3d DCA 1981); State v. Ashley, 393 So.2d 1168 (Fla. 3d DCA 1981) (1981); Knight v. State, 373 So.2d 52 (Fla. 4th DCA 1979), cert. denied, 3......
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State v. Smulowitz, 84-1176
...to below. See State v. Oberholtzer, 411 So.2d 376 (Fla. 4th DCA), pet. for review denied, 419 So.2d 1199 (Fla.1982); State v. Merritt, 394 So.2d 531, 532 (Fla. 3d DCA 1981); Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977); see also State v. Hollid......
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State v. Williams, 80-1402
...immediately visible). Under these circumstances, denial of the motion to dismiss was mandated. Fla.R.Crim.P. 3.190(d); State v. Merritt, 394 So.2d 531 (Fla. 3d DCA 1981); State v. Whitehead, 353 So.2d 900 (Fla. 3d DCA Reversed. 1 This section defines a concealed firearm as "any firearm ... ......