Day: August 21, 2017

In every criminal case sooner or later the topic of a motion to dismiss will come up.  There is a misconception that there is a motion that the defense lawyer can file to make a weak case go away.  If the witnesses are clearly lying why can’t we just file a motion to dismiss and have the Judge throw out the case? This is a question that comes up often enough to warrant a full explanation.

The Law In Florida

In Florida state criminal cases there are four substantive avenues for dismissal by motion set out in the rules of criminal procedure.  These are set out in Florida rule of criminal procedure 3.190 subsection (c):

(c) Time for Moving to Dismiss.  Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(1) The defendant is charged with an offense for which the defendant has been pardoned.

(2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.

(3) The defendant is charged with an offense for which the defendant previously has been granted immunity.

(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

What Does It Mean?

Subsection one is an avenue for dismissal when a person is being prosecuted for something that they have received a Governor’s pardon for.  This situation rarely arises in day to day practice.

Subsection two is an avenue for dismissal when a person is being prosecuted for an offense, or a lesser included offense, for which the person has already been acquitted or has previously been punished.  This usually arises when a person is being prosecuted for an offense in circuit court that is a greater offense of one for which the person has been charged and acquitted of, or punished for in county court.  It could also arise when the State seeks to prosecute a person twice for the exact same thing, but this is very rare.

Subsection three applies when a person is being prosecuted for something that the State has already given him or her immunity for.  This also rarely happens.

Subsection four is the only avenue for a defense attorney to obtain a dismissal on the facts pursuant to Florida rule of criminal procedure 3.190.  However, this section does not allow the Judge to weigh the credibility of witnesses, or weigh the evidence.  This is because a 3.190(c)(4) motion is only proper where both parties agree as to what happened during the incident in question and the only determination for the Judge to make is whether that which both parties agree to is a criminal offense.  If the State and the Defense do not agree as to what actually happened, as it is often the case, a motion to dismiss pursuant to 3,190(C)(4) should be denied because the Judge cannot decide which side is most likely to be correct.

While 3.190(c)(4) does not give a defense attorney an avenue to put the case before the Judge so that the Judge can weigh the evidence and decide whether a case should be dismissed, there are certain circumstances when this is possible.  In Florida state criminal self-defense cases the defense can file a motion pursuant to Florida statute 776.012 and 776.013 (Stand Your Ground law).  Under these statutes the Defense can request a hearing where the defense has the burden of convincing the Judge by preponderance of the evidence that the defendant was acting in self-defense. During the hearing the Judge can listen to the evidence, decide what evidence to believe and what evidence to disbelief.  If at the end of the hearing the Judge determines that the defense has met its burden the Judge can dismiss the case.

Note: The law in Florida is currently not clear as to whether the defense or the State will ultimately end up having the burden of proof in a stand your ground hearing. The statute was amended this year to make it so that now the State has the burden of proof. That statute has since been found unconstitutional by at least two judges in Miami Dade County.

What ultimately ends up being the burden of proof will depend on how the appellate courts settle the issue.

Being accused of a crime in Florida can be challenging.  If you or a family member needs help during this difficult time give us a call.  We would love to help.

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