State v. Smith, 78-2072

Decision Date09 October 1979
Docket NumberNo. 78-2072,78-2072
Citation376 So.2d 261
CourtFlorida District Court of Appeals
PartiesThe STATE of Florida, Appellant, v. James SMITH, Appellee.

Janet Reno, State's Atty. and David Waksman, Asst. State's Atty., for appellant.

Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender and Robin Green (Legal Intern), for appellee.

Before HENDRY and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.


The State of Florida takes this appeal from an order granting the defendant's sworn motion to dismiss an information charging him with second degree murder to which the state demurred.

The defendant was working in a cafe as cashier/manager. About 3:00 A.M. an intoxicated man came into the cafe and caused a disturbance, whereupon defendant asked him to leave. The deceased spoke up in the man's behalf and was also asked to leave. When defendant attempted to grab the man to eject him, the deceased pushed defendant into the juke box and they began struggling. Upon being separated by patrons, the deceased said to defendant, "You just wait, . . . I'm going to kill you," and then ran out the door of the cafe to his truck which was parked about fifteen feet away. Defendant grabbed a gun from behind the counter and ran outside the cafe. One witness heard defendant asked the deceased if he had a gun but heard no response. Defendant stated that when he got to the truck, the deceased was going into his truck and that he believed he was going for a gun. At this point, defendant opened fire. A metallic wrench was found outside the cafe next to where the truck was parked. The deceased drove his truck to a clinic, and while being assisted said, "Man, you know he shot me, but I'm wrong, you know, I'm wrong."

As a general rule, where, as here, the material facts are undisputed, the trial court in considering a motion to dismiss must determine whether the undisputed facts raise a jury question, in much the same manner as a judge evaluates a motion for acquittal made at trial. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). Thus, where, in the opinion of the trial judge the undisputed material facts do not legally constitute the crime charged, or affirmatively establish a valid defense, a motion to dismiss should be granted. Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974).

The state failed to specifically deny by traverse under oath the allegations that defendant believed the...

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11 cases
  • Brady v. State, 86-1647
    • United States
    • Florida District Court of Appeals
    • 10 Noviembre 1987
    ...s. 775.084.3 The effect of the demurrer was to admit 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......
  • Dade County Public Health Trust v. Fuentes
    • United States
    • Florida District Court of Appeals
    • 23 Junio 1981
    ...facie case of guilt, thus necessitating the denial of the motion. State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980); State v. Smith, 376 So.2d 261 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); State v. Hires, 372 So.2d 183 (Fla. 2d DCA 1979); State v. McIntyre, 303 So.2d 675 ......
  • State v. Johnson, 80-1903
    • United States
    • Florida District Court of Appeals
    • 26 Mayo 1981
    ...been denied and the evidence presented to the jury for resolution. State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980); State v. Smith, 376 So.2d 261 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA Accordingly, the order appealed is ......
  • State v. James
    • United States
    • Florida District Court of Appeals
    • 17 Diciembre 2003
    ...1980)(finding employee of convenience store entitled to non-retreat instruction when attacked at his place of business); State v. Smith, 376 So.2d 261 (Fla. 3d DCA 1979)(holding manager of store not obligated to retreat when attacked in or immediately adjacent to store). But see Frazier v. ......
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