Newman v. State

698 So. 2d 896, 1997 Fla. App. LEXIS 9677, 1997 WL 530549

Opinion

HENNING, PATTI ENGLANDER, Associate Judge.

Pursuant to a plea agreement, appellant reserved his right to appeal the trial court’s denial of his sworn motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). At the timely noticed hearing, the State orally traversed the detailed motion claiming only that the State’s position was that appellant’s conduct was a violation of law “based upon the Florida statutes”. Appellant immediately objected to an oral traverse.

Florida Rule of Criminal Procedure 3.190(d) requires a written traverse or demurrer to a motion to dismiss that alleges factual matters. Although the rule undoubtedly requires the traverse to be in writing, this requirement may be waived and an oral traverse may be permitted if there is no objection by the defendant. See State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981) and Turner v. State, 388 So.2d 254 (Fla. 1st DCA), dismissed, 394 So.2d 1154 (Fla.1980). Here appellant did object. Moreover, the specific traverse in this case was an inadequate response to the detailed motion.

Accordingly, this court reverses both the trial court’s denial of appellant’s motion to dismiss and the judgment and sentence entered.

DELL and GUNTHER, JJ., concur.