State v. Power, 78-1865
| Decision Date | 23 March 1979 |
| Docket Number | No. 78-1865,78-1865 |
| Citation | 369 So.2d 96 |
| Parties | STATE of Florida, Appellant, v. Thomas POWER, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
H. Michael Evans, Clearwater, for appellee.
Appellant, the State of Florida, contends that the trial court erred in granting the motion to dismiss filed by appellee Thomas Power who was the defendant in the court below. We agree.
After appellee filed his motion to dismiss an information charging him with grand theft in the second degree in violation of Section 812.014(2)(b), Florida Statutes (1977), the state filed a sworn traverse which specifically denied a material portion of the factual allegations contained in the motion. Fla.R.Crim.P. 3.190(d) states that "A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss." Accordingly, the trial court should have denied appellee's motion. State v. Wardlow, 356 So.2d 901 (Fla. 2d DCA 1978). 1
We reverse the trial court's order and remand the case for further proceedings consistent with this opinion.
1 We also note in passing that appellee presented his factual allegations by way of deposition testimony from several witnesses. This led to inconsistencies in appellee's facts and thus made the case one which did not lend itself to disposition by a motion to dismiss since a motion to dismiss is ordinarily granted in a typical case only when all the relevant facts are clear.
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State v. Johnson, 80-1903
...deny the motion. State v. Wright, 386 So.2d 583 (Fla. 4th DCA 1980); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980); State v. Power, 369 So.2d 96 (Fla. 2d DCA 1979); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); State v. Cook, 354 So.2d 909 (Fla. 2d DCA), cert. dismissed, 359 So.2d......
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State v. Shular
...traverse specifically denying material factual matters related in the sworn motion to dismiss. Fla.R.Crim.P. 3.190(d). State v. Power, 369 So.2d 96 (Fla. 2d DCA 1979); State v. Cook, 354 So.2d 909 (Fla. 2d DCA 1978); State v. Whitehead, 353 So.2d 900 (Fla. 3d DCA 1977); Ellis v. State, 346 ......
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State v. Green, 80-1427
...a jury question exists, a (c)(4) motion to dismiss should not be granted. Ellis v. State; State v. DeJerinett; See also State v. Power, 369 So.2d 96 (Fla. 2d DCA 1979). Moreover, where the relevant and undisputed facts are not clear, a (c)(4) motion should not be granted. The rule is that u......
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State v. Dixon, 83-2038
...deny the motion to dismiss. State v. Cook, 354 So.2d 909 (Fla.2d DCA 1978), cert. dismissed, 359 So.2d 1212 (Fla.1978); State v. Power, 369 So.2d 96 (Fla.2d DCA 1979); Fla.R.Crim.P. 3.190(d) Here, in response to a motion to dismiss, the state filed a traverse and an amended traverse which w......