State v. Purvis

• Decision Date: 26 April 1990
• Docket Number: Nos. 89-8,89-9,s. 89-8
• Citation: 560 So.2d 1296
• Parties: 15 Fla. L. Weekly D1132 STATE of Florida, Appellant, v. Robert L. PURVIS and Christopher A. Ellis, Appellees.
• Court: Florida District Court of Appeals

Page 1296

560 So.2d 1296

15 Fla. L. Weekly D1132

STATE of Florida, Appellant, v. Robert L. PURVIS and Christopher A. Ellis, Appellees.

Nos. 89-8, 89-9.

District Court of Appeal of Florida Fifth District.

April 26, 1990.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Fleming Lee, Asst. Atty. Gen., and Robin A. Compton, Certified Legal Intern, Daytona Beach, for appellant.

Raymond O. Bodiford of Sam E. Murrell & Sons, Orlando, for appellee Robert L. Purvis.

Neil G. Paulson, Orlando, for appellee Christopher Alan Ellis.

PETERSON, Judge.

The State appeals the dismissal of Counts I, VI, and VII of its information. Count I of the information alleged a RICO violation pursuant to section 895.03(3), Florida Statutes; Count VI alleged a violation of section 893.135(1)(b)(1), Florida Statutes, trafficking in cocaine; and Count VII alleged a violation of section 893.135(5), Florida Statutes, conspiracy to traffic in cocaine. The order of dismissal was entered after a hearing on defendants' motions pursuant to Florida Rules of Criminal Procedure 3.190(c)(4), commonly called "C-4 motions." While we agree with the trial court that the traverses were filed untimely, we reverse, nevertheless.

The State's traverses were of few words and were filed after the commencement of the hearing thereon. The traverse to the C-4 motion directed to the State's first count asserted: "The State specifically disputes paragraph # 2, # 3, # 4, and further would contend that the Motion does not contain all the material facts." The traverse to the C-4 motion for Counts VI and VII asserted: "The State specifically disputes paragraphs 4, 6, 7, 8, 9, and further contends that the Motion fails to set forth all the material facts." The trial court dismissed the three counts of the seven-count information, indicating that the traverses were both insufficient and untimely. We agree that the traverses were filed untimely; therefore, the issue of sufficiency need not be addressed.

Rule 3.190(d), Florida Rules of Criminal Procedure, requires that a traverse be filed a reasonable time before the hearing on the motion to dismiss. A traverse filed after the commencement of the hearing is untimely. State v. Rodriguez, 505 So.2d 628 (Fla. 3d DCA 1987), reversed on other grounds, 523 So.2d 1141 (Fla.1988). In defense of its late filing, the State alleges that the hearing on the motions was scheduled for December 16, 1988, but that the C-4 motions were not mailed to the State until December 12; that the defendants' counsel was advised by telephone before the hearing that the State intended to traverse the motions; and that it had only two or possibly three days between the time the motions were received and the hearing. The State cites State v. Burnison, 438 So.2d 538 (Fla. 2d DCA 1983), as authority for allowing service of a traverse immediately before the commencement of the hearing. While we agree that such short notice by the defendants of a hearing on their motions is inconsiderate and objectionable, no such objection was raised at the hearing on the motions. Also, the lack of substance and the brevity of the traverses indicates that two or possibly three days should have been ample time to prepare and file them. Since the traverses were not served upon the defendants until the hearing began, the rule established in Rodriguez, rather than in Burnison, controls this issue. Therefore, we hold that the traverses were untimely filed.

However, the untimely service of the traverses to the C-4 motions does not necessarily mean that the three counts of the information to which the motions were directed must be summarily dismissed. The contents of the C-4 motions must first be examined to determine whether the facts alleged show that "[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant...." Fla.R.Crim.P. 3.190(c)(4). The undisputed facts must constitute a valid defense or negate an essential element of the charge. Ritter v. State, 390 So.2d 168 (Fla. 5th DCA 1980). Whether or not the State responds to a motion to dismiss, the court must consider the motion and decide whether it is legally sufficient. State v. Lawler, 384 So.2d 1290 (Fla. 5th DCA 1980), review denied, 392 So.2d 1376 (Fla.1981). The burden of persuasion on a motion to dismiss does not shift to the State until the defendant files a motion sufficient to show that the State cannot establish a prima facie case. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 175 (Fla.1977). If the undisputed facts as alleged in the motion to dismiss are legally insufficient, then any response from the State would be superfluous, and the motion may be summarily denied. Id. at 1046.

The motion to dismiss Count I (the RICO offense) contains mostly conclusions of law. The amended information to which the motion was addressed charged that:

Christopher Alan Ellis and Robert Lee Purvis, beginning on or about the 16th day of February, 1988, and continuing through the 23rd day of April, 1988, at diverse times between said dates, in said County and State, did, in violation of Florida Statute 895.03(3) combine with each other to form and associate with an enterprise the purpose of which was to engage in a pattern of criminal activity in violation of Chapter 893 of the Florida Statutes and did engage in a pattern of criminal activity consisting of two or more violations of Chapter 893 of the Florida Statutes which have the same intent and method of commission....

The C-4 motion directed to Count I urges the conclusion that neither the three alleged drug transactions nor the sworn deposition of the undercover officer supports the contention that these incidents were interrelated or that the defendants were associated with an enterprise. The C-4 motion further concludes that the fact that certain sales of cocaine were allegedly committed by the same persons on different dates is not sufficient to show a "pattern of racketeering activity." The motion contains no allegations of material facts that would establish a defense to or negate the charges. The only factual allegation that one can glean from the motion is that the defendants may have made several sales of cocaine on different dates. Such an allegation does nothing to either negate or establish a defense to a charge of "racketeering activity." Since the motion to dismiss Count I does not set forth facts sufficient to justify a dismissal under Rule 3.190(c)(4), the dismissal of Count I of the information is reversed.

The motion to dismiss Counts VI and VII (alleging trafficking and conspiracy offenses) was based upon the theory that the undisputed facts established entrapment as a matter of law. The entrapment defense arises from the recognition that sometimes police activity will induce an otherwise innocent individual to commit a criminal act the police activity seeks to produce. In Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), the Florida Supreme Court held that a police "drunken bum decoy operation" was entrapment as a matter of law. The bait was $150 in cash plainly displayed in the back pocket of a person seemingly incapable of noticing if it was removed. The court found that the police had not targeted any specific ongoing criminal activity and that the operation carried a substantial risk that the cash would be stolen by persons other than those who were ready to commit the crime.

The Cruz opinion indicated that where entrapment occurs as a matter of law, it is termed "objective entrapment." The existence of objective entrapment can be determined upon a motion to dismiss. In Cruz, the court propounded the following two-pronged threshold objective test to determine the existence of objective entrapment: "Entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity." Id. at 522. The facts alleged in the motions to dismiss in the instant case do not establish entrapment as a matter of law when the Cruz two-pronged test is applied.

In their motions to dismiss the trafficking and conspiracy counts, the defendants allege essentially the following:

1. The strength of financial incentive combined with repetition of attempts to persuade the defendants to commit the offense, in addition to offering alcohol to underaged persons to keep them from backing out of the deal leads to the conclusion that the trial court should find entrapment as a matter of law.

2. Neither defendant possessed the large amount of cocaine that was requested by the police officer, and it was to be obtained from a "source." Thus, the first prong of the Cruz test is not met since the objective was not the interruption of ongoing criminal activity, to-wit, the sale of small amounts of cocaine, but the commission of a different crime of sales large enough to constitute trafficking.

3. The officer misrepresented who he was and the amount of money that defendants could make by entering into the transaction.

4. The officer continued to induce and encourage the...