Ellis v. StateEllis v. State
Appellant, having been charged by amended information with possession of heroin and possession of more than five grams of marijuana, moved to dismiss the amended information, pursuant to
Before delving into the facts of the case, we find it desirable tо briefly discuss the nature and purpose of a 3.190(c)(4) proceeding. (We here address the procedural issue which did not appear, but was mentioned in footnote (1), in State v. Snowden, Fla.App., 345 So.2d 856, Opinion filed May 11, 1977.) In State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971), our sister court exрlained that the purpose of the rule was “to permit a pretrial determination of the law of the case where the facts are not in dispute, in a sense somewhat similar to summary judgment proceedings in civil cases (except that a dismissal under the rule is not a bar to a subsequent prosecution).” The proceeding is designed to create neither a trial by affidavit nor a dry run of a trial on the merits, nor is it supposed to serve as a “fishing expedition“.
The question arises: Upon whom does the burden of proof fall under the rule? 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 faсie 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
Sub judice, the State‘s traverse did not deny that any material fact was undisputed, but merely denied that the undisputеd material facts did not establish a prima facie case. Having failed to specifically deny the facts as alleged in the motion to dismiss, the State is deemed to have admitted thosе facts. The rule, however, is silent as to whether the State in its traverse must list those material facts, either disputed or undisputed, upon which it will rely at hearing on the motion and which were not contаined in defendant‘s motion to dismiss. Although, in our view, the better practice would be for all such factual matters to be contained or alluded to in the State‘s traverse and that the State should not be permitted (absent an amendment to the traverse) to present evidence at the hearing on the motion to dismiss concerning facts which were not contained or alluded to within the motion to traverse, that problem does not arise in this case because apparently the State did not present evidence at the hearing held on defendant‘s motion. Accordingly, we reserve that determination until the issue is properly raised.
In its brief, the State misconceives the purpose of Rule 3.190(c)(4), arguing that appellant is seeking a premature trial on the merits in the guise of a motion to dismiss. The record does not so reflect. Appellant has merely alleged certain facts which he claims are undisputed and material. The State сould have either denied any of the material facts in its traverse, or presented additional facts. The State‘s position, then, must stand or fall on the bare denial that the undisputed facts dо not establish a prima facie case.
Turning to the facts of the case as revealed by the motion to dismiss, it appears that on March 25, 1976, Officers Cotton, Boswell, and Hughes executеd a search warrant at 1121 Hope Street in Pensacola. Although appellant had lived at that address by himself since November of 1975, other individuals had been inside the premises and had stayеd overnight on occasion during the weeks prior to the execution of the search warrant. Further, appellant occasionally stayed overnight at his mother‘s residence in Pensacola. At the time the search of his home was conducted, appellant
Under the rationаle of the appellant, the State failed to establish a prima facie case because, under the undisputed facts, the essential element of possession, either aсtual or constructive, could not be found. By judicial interpretation, possession or control within the meaning of a drug statute means either actual physical possession with knowledge оf same or constructive possession where the accused knows of the presence of the item on or about his premises and has the ability to maintain control over it. Griffin v. State, 276 So.2d 191 (Fla. 4th DCA 1973). The State asserts that appellant‘s motion to dismiss is deficient because of his failure to deny that he was in actual or constructive possession of the drugs. Such reasoning is specious. Normally, it is uр to the trier of facts to determine from the evidence whether the State has established either actual or constructive possession. Thus, where the material facts are undisputеd, the trial court, in considering a defendant‘s motion to dismiss, must determine whether the undisputed facts raise a jury question as to the issue of possession in much the same manner as the judge evaluates a motion for directed verdict of acquittal made at trial.
Since the undisputed material facts in this case clearly show that appellant was not in actual possession of thе drugs, the dispositive question is whether a jury could have concluded from the undisputed facts that the appellant was in constructive possession of the drugs, i.e., whether appellant knew of the presence of the drugs on or about his premises and had ability to maintain control over them. Under the circumstances of this case, it is clear that appellant was not in constructive possession. Although appellant was owner of the premises upon which the drugs were found, he was not at home at the time of the search, being out of town. Other persons had bеen in or about the premises over a period of time and the drugs were not found in a location which would have been within appellant‘s exclusive knowledge or under his exclusive cоntrol, but were discovered in the kitchen which was easily accessible to all persons entering the premises. Since the State under the undisputed facts did not establish possession which is an essential element of the crime charged, appellant‘s motion to dismiss should have been granted.
Accordingly, the cause is reversed and remanded with directions that the information filed against appellant be dismissed.
REVERSED AND REMANDED WITH DIRECTIONS.
RAWLS and McCORD, JJ., concur.