Allen v. State

852 So. 2d 394, 2003 Fla. App. LEXIS 12383, 2003 WL 21976405

Opinion

PER CURIAM.

Appellant challenges the denial of his motion to dismiss the information charging him with vehicular homicide. In his motion, filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), appellant claimed that there were no material disputed issues of fact. His view of the evidence was that the state could only prove that he was driving approximately 95-105 miles per hour down 1-75 in Broward County when the accident occurred, which was insufficient to constitute reckless driving to support the charge of vehicular homicide. While a witness had seen appellant weaving through traffic, that witness observed this conduct over three miles from the accident scene, thus failing to establish that the weaving was a proximate cause of the accident. The state filed a traverse, stating that appellant’s speed exceeded 110 miles per hour, and denying that the witness who observed appellant weaving was several miles away from the accident, as that estimate by appellant’s counsel was based in part on appellant’s speed. Because the state traversed the motion with specificity and presented additional facts in the motion that created a material issue of fact, the motion was properly denied. See Fla. R.Crim. P. 3.190(d); Boler v. State, 678 So.2d 319, 323 (Fla.1996).

Affirmed.

WARNER, POLEN and GROSS, JJ., concur.