State v. Shull

District Court of Appeal of Florida

State v. Shull

390 So. 2d 1233, 1980 Fla. App. LEXIS 17830

CourtDistrict Court of Appeal of Florida

DecidedDecember 10, 1980

DocketNo. 78-2147/T4-231

StatusPublished

Cited by3 cases

This text of 390 So. 2d 1233 (State v. Shull) 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. Shull, 390 So. 2d 1233, 1980 Fla. App. LEXIS 17830 (Fla. Ct. App. 1980).

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Opinion

NORRIS, WILLIAM A., Jr., Associate Judge.

In an amended information the state charged appellee with one count of second [1234]*1234degree grand theft of a pistol and one count of dealing in stolen property, the same pistol. Appellee filed an unverified and un-sworn amended motion to dismiss pursuant to the provisions of Rule 3.190(c)(4), Florida Rules of Criminal Procedure, a so-called “c-4 motion.” The state filed a traverse to the c-4 motion, and thereafter the trial court granted the amended motion to dismiss as to both counts of the amended information. In dismissing the amended information the trial court erred and we reverse.

The express language of the rule, “[t]he facts on which such motion is based should be specifically alleged and the motion sworn to,” reveals the deficiency in appellee’s motion. The motion contained neither sufficient factual allegations nor were the purported facts sworn to. In support of the amended motion appellee did file a memorandum of law which alleged facts. However, these alleged facts were not sworn to and were thus insufficient compliance with the requirements of the rule. State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976); State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974); State v. Russo, 299 So.2d 40 (Fla. 4th DCA 1974).

While the procedural deficiency of the amended motion to dismiss requires reversal, we feel it is also appropriate to observe that assuming, arguendo, that the amended motion to dismiss had been sworn to and had incorporated all of the alleged facts in the supporting memorandum of law, the state’s traverse was sufficient to raise disputed material issues of fact regarding defendant’s knowledge and intent, thereby requiring a denial of the motion to dismiss. State v. Guyton, 331 So.2d 392 (Fla. 4th DCA 1976); State v. West, 262 So.3d 457 (Fla. 4th DCA 1972).

The order dismissing the amended information is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

DAUKSCH, C. J., concurs. FRANK D. UPCHURCH, Jr., J., concurs without participation in oral argument.

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NORRIS, WILLIAM A., Jr., Associate Judge.

In an amended information the state charged appellee with one count of second [1234]*1234degree grand theft of a pistol and one count of dealing in stolen property, the same pistol. Appellee filed an unverified and un-sworn amended motion to dismiss pursuant to the provisions of Rule 3.190(c)(4), Florida Rules of Criminal Procedure, a so-called “c-4 motion.” The state filed a traverse to the c-4 motion, and thereafter the trial court granted the amended motion to dismiss as to both counts of the amended information. In dismissing the amended information the trial court erred and we reverse.

The express language of the rule, “[t]he facts on which such motion is based should be specifically alleged and the motion sworn to,” reveals the deficiency in appellee’s motion. The motion contained neither sufficient factual allegations nor were the purported facts sworn to. In support of the amended motion appellee did file a memorandum of law which alleged facts. However, these alleged facts were not sworn to and were thus insufficient compliance with the requirements of the rule. State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976); State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974); State v. Russo, 299 So.2d 40 (Fla. 4th DCA 1974).

While the procedural deficiency of the amended motion to dismiss requires reversal, we feel it is also appropriate to observe that assuming, arguendo, that the amended motion to dismiss had been sworn to and had incorporated all of the alleged facts in the supporting memorandum of law, the state’s traverse was sufficient to raise disputed material issues of fact regarding defendant’s knowledge and intent, thereby requiring a denial of the motion to dismiss. State v. Guyton, 331 So.2d 392 (Fla. 4th DCA 1976); State v. West, 262 So.3d 457 (Fla. 4th DCA 1972).

The order dismissing the amended information is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

DAUKSCH, C. J., concurs. FRANK D. UPCHURCH, Jr., J., concurs without participation in oral argument.

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390 So. 2d 1233, 1980 Fla. App. LEXIS 17830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shull-fladistctapp-1980.

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