State v. Rogers

36 Fla. Supp. 2d 214

• Court: Circuit Court for the Judicial Circuits of Florida
• Decided: August 10, 1989
• Docket: Case No. 88-16771CF10A
• Status: Published

Opinion

OPINION OF THE COURT

MEL GROSSMAN, Circuit Judge.

ORDER GRANTING DEFENDANTS MOTION TO DISMISS

THIS CAUSE was considered by the Court upon the Defendant’s Motion to Dismiss.

A HEARING on the Motion was held in open court July 5, 1989.

THE COURT having considered the grounds for said Motion, heard argument of counsel, read the various Memorandum of Law filed by both parties and considered the applicable law finds as follows:

Defendant in his Motion to Dismiss fully complied with Fl.R.Crim.P. 3.190(c)(4). The State then filed its Traverse, specifically admitting the contents of Defendant’s Motion to Dismiss. During the oral argument the State speculated that additional evidence might turn up. Any traverse “must be in good faith, and not be based upon speculation, conjecture, presumption nor assumption.” Ellis v State, 346 So.2d 1044 (1st DCA 1977).

Since the State failed to specifically deny any material fact, the dispositive question for the trier of fact in this case is whether the Defendant was in constructive possession of the cocaine since it is undisputed there was no actual possession. Ellis, supra. It is apparent based upon the pleadings that the elements of constructive possession were not met in this case as a matter of law.

WHEREFORE, based on the foregoing it is,

ORDERED AND ADJUDGED tht the Defendant’s Motion to Dismiss is GRANTED.

DONE AND ORDERED this 10th day of August, 1989.