State v. Rodriguez

District Court of Appeal of Florida

State v. Rodriguez

505 So. 2d 628, 12 Fla. L. Weekly 1022, 1987 Fla. App. LEXIS 7736

CourtDistrict Court of Appeal of Florida

DecidedApril 14, 1987

DocketNo. 86-2854

StatusPublished

Cited by3 cases

This text of 505 So. 2d 628 (State v. Rodriguez) 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

State v. Rodriguez, 505 So. 2d 628, 12 Fla. L. Weekly 1022, 1987 Fla. App. LEXIS 7736 (Fla. Ct. App. 1987).

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Opinion

PER CURIAM.

The state appeals from a non-final order granting the defendant’s sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) and denying the state’s motion to strike the defendant’s motion. It is the state’s contention that the motion to dismiss should have been stricken as procedurally defective because the jurat contained in the motion¹ failed to expose the defendant to the penalties of perjury. We cannot agree. Nor are we persuaded by the state’s reliance upon State v. Socarras, 502 So.2d 31 (Fla. 3d DCA 1987). Socarras is distinguishable from. the case at bar since the defendant’s oath which was found to be defective in Socarras stated that the facts alleged in the motion were “true and correct to the best of his knowledge, information and belief.” (Emphasis in original.) In the instant case, however, the jurat clearly rested upon the defendant’s own knowledge of the facts recited in the motion, therefore the motion was properly sworn, to in accordance with Fla.R.Crim.P. 3.190(c)(4). See Socarras, 502 So.2d at 32, and cases cited.

We also reject the state’s fail-back argument that the motion should have been denied because the state had filed a traverse. The record reflects that the traverse was not timely filed in accordance with the rule “a reasonable time before the hearing on the motion to dismiss,” Fla.R. Crim.P. 3.190(d), but rather, was filed with the court after the commencement of the hearing on the motion to dismiss.

Affirmed.

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PER CURIAM.

The state appeals from a non-final order granting the defendant’s sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) and denying the state’s motion to strike the defendant’s motion. It is the state’s contention that the motion to dismiss should have been stricken as procedurally defective because the jurat contained in the motion¹ failed to expose the defendant to the penalties of perjury. We cannot agree. Nor are we persuaded by the state’s reliance upon State v. Socarras, 502 So.2d 31 (Fla. 3d DCA 1987). Socarras is distinguishable from. the case at bar since the defendant’s oath which was found to be defective in Socarras stated that the facts alleged in the motion were “true and correct to the best of his knowledge, information and belief.” (Emphasis in original.) In the instant case, however, the jurat clearly rested upon the defendant’s own knowledge of the facts recited in the motion, therefore the motion was properly sworn, to in accordance with Fla.R.Crim.P. 3.190(c)(4). See Socarras, 502 So.2d at 32, and cases cited.

We also reject the state’s fail-back argument that the motion should have been denied because the state had filed a traverse. The record reflects that the traverse was not timely filed in accordance with the rule “a reasonable time before the hearing on the motion to dismiss,” Fla.R. Crim.P. 3.190(d), but rather, was filed with the court after the commencement of the hearing on the motion to dismiss.

Affirmed.

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Bluebook (online)

505 So. 2d 628, 12 Fla. L. Weekly 1022, 1987 Fla. App. LEXIS 7736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriguez-fladistctapp-1987.

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