Motion to Dismiss – Rule 3.190(c)(4)
Under the Florida Rules of Criminal Procedure, the trial court may entertain a motion to dismiss at any time if it is based on the ground that there are no issues of material fact and the undisputed facts do not establish a prima facie case of guilt. Fla. R. Crim. P. 3.190(c)(4).
This article explains the benefits of filing a Sworn Motion to Dismiss under Florida Rules of Criminal Procedure 3.190(c)(4) which is often called the “C4 Motion to Dismiss.” The motion to dismiss will be denied if the government files a traverse that denies the material facts alleged in the motion to dismiss. Fla. R. Crim. P. 3.190(d).
If you are charged with a crime and the undisputed facts do not establish a prima facie case, then contact an experienced criminal defense attorney at Sammis Law Firm to learn more.
Purpose of the Rule 3.190(c)(4) Motion to Dismiss
“The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute.” State v. Pasko, 815 So. 2d 680, 681 (Fla. 2d DCA 2002) (citing Styron v. State, 662 So.2d 965 (Fla. 1st DCA 1995).
In fact, Fla. R. Crim. P. 3.190(c)(4) provides:
“[T]he court may at any time entertain a motion to dismiss on any of the following grounds: . . . There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which the motion is based should be alleged specifically and the motion sworn to.”
Rule 3.190(c)(4) is structured to avoid a judge’s resolution of factual disputes, leaving those matters to the finder of fact at a trial. A Rule 3.190(c)(4) motion to dismiss is similar to a motion for summary judgment in a civil case, and as such both should be granted sparingly. See State v. Bonebright, 742 So. 2d 290, 291 (Fla. 1st DCA 1998).
Requirement of No Material Disputed Facts
In State v. Sammons, 889 So. 2d 857, 858 (Fla. 4th DCA 2004), the court concluded;
“The motion is well taken only if no material facts are in dispute and the most favorable construction of the undisputed facts in favor of the State would not establish a prima facie case of guilt.”
In Ritter v. State, 390 So. 2d 168, 169-170 (Fla. 5th DCA 1980), the court explained that “[a]s a procedural matter on a motion under this rule the accused must verify facts so inconsistent with his guilt that if untraversed their resulting acceptance as truth will establish his innocence. Most often such facts will establish a classic affirmative defense, such as self-defense, insanity, or entrapment, but can relate to any facts which are mutually exclusive to facts essential to the State’s case, such as alibi, the accused’s possessory right to property allegedly stolen, or may show the application of an exception in a statute defining an offense.
The Motion to Dismiss Must be Sworn
If the motion to dismiss is legally insufficient if it is unsworn. In Styron v. State, 662 So. 2d 965, 967 (Fla. 1st DCA 1995), the court concluded that the “[f]ailure to swear to a ‘(c)(4)’ motion to dismiss is fatal.”
Issue of Knowledge and Specific Intent
In Graves v. State, 590 So. 2d 1007 (Fla. 3d DCA 1991), the court reversed an order dismissing an information under Fla.R.Crim.P. 3.190(c)(4) based upon the following holding:
“The issue of knowledge and of specific intent to commit a crime when acting as a ‘lookout’ or a ‘wheelman,’ as appellant is charged with doing, is not a proper issue to be decided on a motion to dismiss. S.T.N. v. State, 474 So. 2d 884 (Fla. 4th DCA 1985). Knowledge is an ultimate question of fact and thus not subject to a motion to dismiss. State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981)(citations omitted).
When the State Files a Traverse
After the defense files the Sworn Motion to Dismiss under Florida Rules of Criminal Procedure 3.190(c)(4), the matter is set for a hearing. Prior to the hearing, the State has a limited amount of time to either stand silent or file a Traverse or Demurrer.
Rule 3.190(d), CrPR, provides that a motion to dismiss shall be denied if the state files a traverse which denies under oath a material fact alleged in the motion to dismiss. Fla. R. Crim. P. 3.190(d) provides:
The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in the traverse.
The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.
The demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.
“If the facts in the motion that the State does not specifically deny support the defendant’s position but additional facts exist that would create a material issue preventing the granting of the motion, the State should set forth those additional facts in the traverse just as a non-movant would have to do in a counter-affidavit in order to defeat a motion for summary judgment.” State v. Kalogeropolous, 758 So. 2d 110, 112 (Fla. 2000).
In other words, the “State need only specifically dispute a material fact alleged by the defendant or add additional material facts that meet the minimal requirement of a prima facie case.” Id. “If a material fact is disputed, denial of the motion to dismiss is mandatory. Id. In meeting its burden of establishing a prima facie case, the State can use circumstantial evidence, and all inferences made are resolved in its favor. Id.
“A Traverse requires more than a did not, did so swearing match. The State is required to specifically dispute the material facts alleged by defendant or add additional material facts that meet the minimal requirements of a prima facie case of guilt.” State v. Paredes, 191 So. 3d 936, 940 (Fla. 4th DCA 2016).”
In State v. Gutierrez, 649 So. 2d 926, 927 (Fla. 3rd DCA 1995), the court recognized that any “denial by the State must be in good faith, and not be based upon speculation, conjecture, presumption or assumption.”
The Traverse Must Deny Material Facts with Specificity
What happens if the state files a “traverse” but it is devoid of any denial of any of the material facts alleged in the defendant’s motion? The mere act of filing a sworn document entitled “traverse” is insufficient under the Rule as a matter of law.
The 1977 Amendment to Florida Rules of Criminal Procedure 3.190(c)(4) resolved any ambiguity in the rule as to whether the state must file a general or a specific traverse to defeat a motion to dismiss filed under the authority of rule 3.190(c)(4). See State v. Kemp, 305 So. 2d 833 (Fla. 3d DCA 1974). The amendment clearly now requires a specific traverse to a specific material fact or facts.
In other words, the “with specificity” language was added to the rule to clarify that the State of Florida was required to file a specific traverse to “specific material fact or facts” in order to defeat a motion to dismiss. See Florida Bar re Florida Rules of Criminal Procedure, 343 So. 2d 1247, 1255-56 (Fla. 1977).
When the Traverse is Filed After the Hearing Begins
What happens if the State files the traverse right before or right after the hearing begins?
If the prosecutor’s Traverse or Demurrer is filed late, then the defense might more to strike the traverse or demurrer as untimely under Florida Rule of Criminal Procedure 3.190(d).
In State v. Burnison, 438 So. 2d 538, 540 (Fla. 2d DCA 1983), a traverse was provided to the defendant just before the hearing. Id. at 538. The Second District Court of Appeal held that the trial court abused its discretion by granting the motion to dismiss because a continuance would have cured any prejudice to the defendant. Id. at 539-40.
In State v. Rodriguez, 505 So. 2d 628 (Fla. 3d DCA 1987), reversed on other grounds, 523 So. 2d 1141 (Fla. 1988), the State did not file a traverse until after the start of the hearing. Rodriguez, 505 So. 2d at 628. The Third District Court of Appeal held that the trial court did not err by striking the traverse and considering only the merits of the motion itself. Id. The Supreme Court of Florida later reversed the Third District’s opinion but based upon the defendant’s defective oath contained within the motion. Rodriguez, 523 So. 2d at 1142. The Supreme Court did not disturb the traverse portion of the Third District’s holding.
Standard of Review for a Motion to Dismiss on Appeal
A trial court’s order ruling on a Rule 3.190(c)(4) motion to dismiss involves a pure question of law and is therefore reviewed pursuant to a de novo standard. See Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000).
In State v. Paul, 299 So. 3d 542, 544-545 (Fla. 5th DCA 2020), the court applied the following germane principles:
“First, “the State is entitled to the most favorable construction of the evidence, and all inferences arising from the facts contained in both the motion to dismiss and the traverse must be resolved in favor of the State and against the defendant.” State v. Gay, 960 So. 2d 864, 867 (Fla. 2d DCA 2007) (citations omitted).
Second, “[i]n considering a (c)(4) motion the trial judge may not try or determine factual issues nor consider the weight of conflicting evidence or the credibility of witnesses.” State v. Cadore, 59 So. 3d 1200, 1203 (Fla. 2d DCA 2011).
Next, a trial court must not grant a motion to dismiss criminal charges merely because it concludes that the case will not survive a motion for judgment of acquittal. Id. (citations omitted).
Lastly, “the burden is on the defendant to show that the undisputed facts either (1) fail to establish a prima facie case, or (2) establish a valid defense.” State v. Carry, 75 So. 3d 803, 804-05 (Fla. 5th DCA 2011)(citations omitted).
In some cases, if the motion is denied and the motion is dispositive, the issue can be preserved for appeal. In those cases, a defendant may appeal from a nolo contendere plea if they expressly reserves the right to appeal a prior dispositive trial court order. See Fla. R. App. P. 9.140(b)(2)(A)(i).
Sample Motion to Dismiss
SWORN MOTION TO DISMISS
COMES NOW, [[name of the Defendant]] by and through the undersigned attorney and pursuant to Florida Rules of Criminal Procedure 3.190(c)(4), respectfully requests that this Court enter an order dismissing the criminal charge filed against the Defendant in this case.
As grounds for this request, Defendant shows the Court there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against Defendant.
The facts and law upon which this motion is based are as follows:
- Defendant is charged with one count of [[insert charge, statute number, and classification of criminal offense]].
- The case was filed by direct file information by the State of Florida which alleges that on [[date]], in the County of Hillsborough and State of Florida, Defendant willfully [[track the language of the charging document]].
- [[Insert the undisputed facts]].
[[Explain the elements of the offense]].
[[Insert the reason why the undisputed facts are insufficient to prove one or more elements of the offense]].
In Florida, the purpose of a motion to dismiss filed under Rule 3.190(c)(4) is to cull the wheat from the chaff without wasting valuable court time. As explained by the Fifth District Court of Appeal, the function of the (c)(4) motion to dismiss is to ascertain whether or not the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case of guilt of the accused. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981) citing State v. Davis, 243 So.2d 587 (Fla.1971).
Furthermore, “[T]he purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute”. State v. Pasko, 815 So. 2d 680, 681 (Fla. 2nd DCA 2002).
Should the prosecution chose to traverse this motion, the State’s traverse must dispute “material” facts. In State v. Hysell, the 5th DCA held that a traverse mandates the denial of a motion to dismiss only when it “creates a dispute as to material evidentiary facts [emphasis in original]”. The dismissal in that case occurred because the state’s traverse merely “disputed the legal effect” of the facts. 569 So. 2d 866, 867 (Fla. 5th DCA 1990).
In State v. Nunez, the 3rd DCA held that the state’s traverse was insufficient to survive the defendant’s motion to dismiss, because “a traverse requires more than a did not, did so swearing match.” 881 So. 2d 658 (Fla. 3rd DCA 2004).
In this case, the crime of [[state crime]] did not occur.
WHEREFORE, based upon the foregoing, Defendant respectfully requests that this Court will enter an order dismissing the criminal charges pending against Defendant in this cause.
[[insert signature line and certificate of service]].
This article was last updated on Friday, October 15, 2021.