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306 So. 2d 150

Docket No. 74-936.

State v. Hamlin

STATE of Florida, Appellant, v. Joe Mack HAMLIN, Appellee.

District Court of Appeal of Florida

Decided January 17, 1975.

District Court of Appeal of Florida · decided 1975-01-17

Key passage — most relied on by later courts

“Initially, the defendant in his sworn motion must allege that the material facts of the case are undisputed, describe what the undisputed material facts are, and demonstrate that the undisputed facts fail to establish a prima facie case or that they establish a valid defense (either an affirmative defense or negation of an essential element of the charge). Obviously, if the undisputed facts as alleged' in the motion to dismiss do not meet such burden then any response from the State would be superfluous, and the motion may be summarily denied. If, however, the allegations of the motion meet the above test, then the burden shifts to the State. If the State wishes to avoid the effect of the motion, then its traverse or demurrer, as described in Rule 3.190(d), must place a material issue of fact in dispute or establish that the undisputed facts do establish a prima facie case. In the former instance, denial by the State under oath in its traverse of a specific material fact alleged in the motion to dismiss requires automatic denial of the motion to dismiss. Conversely, those facts alleged in the motion to dismiss which are not specifically denied by the State are, for the purpose of the motion, deemed admitted. For the State’s traverse to effectively deny a material fact alleged in the motion to dismiss, it need not be based in whole or in part on the personal knowledge of the state attorney who files it nor must it be buttressed by the affidavit of the victim or other witness. ”

quoted by 2 later decisions, including 382 So. 2d 1354 - Kassel v. State, 997 So. 2d 1174 - State v. Terma

“"(d) Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in such traverse... ."”

quoted by 2 later decisions, including City of Pompano Beach v. Twomey, 338 So. 2d 1313 - State v. News-Press Pub. Co.

Relies on State v. Giesy · Shaw v. Fletcher

Good law ✅— No negative treatment on recordhow we know

Decided 1975-01-17

How this case has been cited

Cited by 16 later decisions — most recently December 2008

16 state decisions

901975198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*151 Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellant.

¶2Richard L. Jorandby, Public Defender, Kenneth J. Scherer, Asst. Public Defender, and Martin H. Colin, Legal Intern, West Palm Beach, for appellee.

¶3WALDEN, Judge.

¶4The trial court dismissed a criminal information. The State of Florida appeals. We reverse.

¶5Joe Mack Halin was charged in that information with larceny of a motor vehicle on March 25, 1974, same being the property of Roger Savald.

¶6Defendant, Joe Mack Hamlin, filed a motion to dismiss under Rule 3.190, F.R. Cr.P., with this sworn allegation:

"c. Further, the Defendant says that on March 25, 1974, he and his brother, James Hamlin, purchased said automobile from Roger Savard for the amount of $200. In this respect said $200 was definitely for the purchase of said automobile and was not for rent of a trailer owned by Roger Savard."

¶7In response, the State filed its sworn traverse under Section (d) of the mentioned Rule and said:

"A. Although there had been discussions about the possible purchase of the subject vehicle between the defendant and Mr. Savard, no sale was ever consumated [sic] and title to the vehicle was never transferred to the defendant.
"B. Two hundred dollars allegedly paid by the defendant and his brother was rental monies and not consideration for the subject vehicle."

¶8The trial court granted the defendant's motion to dismiss for two reasons:

1. The State's traverse was insufficient in that it was signed by the State Attorney who lacked personal knowledge of the facts; and
2. The subject matter of the sale and title to the vehicle in question concerns a transaction which ought to be considered by the civil courts rather than the criminal courts.

¶9The State appeals.

¶10It is clear that had the State not traversed the defendant's allegation, the information would necessarily have to be dismissed because the defendant could not be guilty of stealing his own vehicle. However, the State's traverse placed the material facts in dispute in the sense that it said there had been no sale and no transfer of title to the defendant and explained that the $200 said to have been the purchase price were in fact for the purposes of rent.

¶11Rule 3.190(d), F.R.Cr.P., provides:

"(d) Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in such traverse. The court may receive evidence on any issue of fact necessary to the decision of the motion. A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss. Such demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss." (Emphasis supplied.)

¶12And now to the trial court's reasoning. We have neither been shown nor been able to find any authority for the proposition that the State's traverse must be based on personal knowledge on the part of the State Attorney who files it. The mentioned Rule nowhere requires it. As a practical matter, it would be unrealistic to think that the State Attorney would have been present and have personal knowledge of the commission of the crime. Further, *152 here there was already a sworn complaint by the victim establishing probable cause and it would be redundant to require him to subsequently swear to the same allegations.

¶13As we view it, the traverse or demurrer under the Rule need not be based upon personal knowledge on the part of the State or shored up by affidavit of the victim. We think it is enough that the State Attorney, being a public official of this State, performing under his oath of office and being also an attorney at law and an officer of the court with attendant responsibilities, and having an overall view of the evidence against the accused, simply filed his official sworn traverse or demurrer. We decline to believe that such an official would demean his office and ignore his obligation by filing a spurious or bad faith traverse.

¶14Now we go to the second reason employed by the trial court as a basis for the dismissal. The trial court has no authority to dismiss a properly filed information that properly charges a crime where facts are in dispute. State v. Giesy, 243 So.2d 635 (4th D.C.A.Fla. 1971). We recognize that often a transaction may constitute a crime and at the same time give rise to separate liabilities in tort or contract; and the fact that this occurs does not afford a basis for dismissing a criminal information. See Shaw v. Fletcher, 137 Fla. 519, 188 So. 135 (1939); 9 Fla.Jur. Criminal Law § 3 (1972) and 32 Fla.Jur. Torts § 2 (1960).

¶15Going back to the allegations of defendant's motion to dismiss, and the State's traverse, we reiterate that the material facts alleged by the defendant were denied under oath in the State's traverse. Hence, it was error for the trial court to grant the defendant's motion to dismiss.

¶16Reversed.

¶17CROSS and MAGER, JJ., concur.

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