Newman v. State

District Court of Appeal of Florida

Newman v. State

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

CourtDistrict Court of Appeal of Florida

DecidedAugust 27, 1997

DocketNo. 96-0863

StatusPublished

This text of 698 So. 2d 896 (Newman v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Newman v. State, 698 So. 2d 896, 1997 Fla. App. LEXIS 9677, 1997 WL 530549 (Fla. Ct. App. 1997).

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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.

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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.

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Bluebook (online)

698 So. 2d 896, 1997 Fla. App. LEXIS 9677, 1997 WL 530549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newman-v-state-fladistctapp-1997.

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