State v. ArmstrongState v. Armstrong
DOWNEY, JAMES C., Senior Judge.
Appellee was charged by information in Counts I and II with possession of cocaine and of drug paraphernalia and, in a third count, with solicitation for prostitution. Upon appellee‘s motion to dismiss pursuant to
The factual setting giving rise to the charges is that appellee was arrested for soliciting the arresting officer for prostitution. After placing him under arrest, the officer searched the automobile appellee was driving. She found in plain view an empty Sprite can allegedly used as drug paraphernalia and discovered underneath the floor mat on the driver‘s side several cocaine rocks.
Prior to trial appellee filed a sworn motion to dismiss Counts I and II pursuant to
The state‘s traverse specifically denies paragraph three of the motion to dismiss. It asserts no knowledge as to the allegations regarding appellee‘s transporting a hitchhiker to a Hallandale hotel, but admits the officer “found a Sprite can and three cocaine rocks in the [d]efendant‘s car.” Finally, the traverse admits appellee was in exclusive possession of the car and thus knowledge was inferred as to the presence of the can in plain view on the car seat and the cocaine rocks.
The difficult aspect of this case arises from the jurat attached to the state‘s traverse. Essentially, the Assistant State Attorney, vouching for the traverse, simply states that he has read the allegations therein contained and “the same are true and correct to the best of his knowledge and belief.” Such a jurat has been held inadequate to meet the requirements of
The contents of the C-4 motions must first be examined to determine whether the facts alleged show that “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant... .”
Fla.R.Crim.P. 3.190(c)(4) . The undisputed facts must constitute a valid defense or negate an essential element of the charge. Ritter v. State, 390 So.2d 168 (Fla. 5th DCA 1980). Whether or not the State responds to a motion to dismiss, the court must consider the motion and decide whether it is legally sufficient. State v. Lawler, 384 So.2d 1290 (Fla. 5th DCA 1980), review denied, 392 So.2d 1376 (Fla. 1981). The burden of persuasion on a motion to dismiss does not shift to the State until the defendant files a motion sufficient to show that the State cannot establish a prima facie case. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 175 (Fla. 1977). If the undisputed facts as alleged in the motion to dismiss are legally insufficient, then any response from the State would be superfluous, and the motion may be summarily denied. Id. at 1046.
In our view the undisputed facts stated in the motion to dismiss are not sufficient to demonstrate that the state cannot establish a prima facie case of guilt. The record upon which the trial court relied to dismiss the information shows that appellee picked up a stranger and transported him a few miles to a Hallandale hotel. On his way back to his home he stopped on U.S. Highway 1 in Hallandale and propositioned a female, who turned out to be a police officer. A search of the car appellee was driving revealed alleged drug paraphernalia in the form of a soda can in plain view on the passenger side of the bench-type front seat, and cocaine rocks underneath the floor mat on the driver‘s side of the car. These facts (the verity of which is firmly supported in the state‘s defective traverse) do not demonstrate that the state cannot present a prima facie case of guilt. On the contrary, they make appellee‘s story almost incredible. The issue being focused upon is knowledge, i.e., appellee‘s knowledge of the presence of contraband. The admitted facts are that appellee was in exclusive possession of his own car. Contraband (a modified soda can for smoking cocaine) was found in plain view on the front passenger seat and cocaine rocks were found under the floor mat on the driver‘s side of the car. Appellee‘s explanation is that he never saw any of the contraband prior to arrest, so they must have been left in the car by a hitchhiker he picked up. The question that immediately arises is, how could appellee have failed to see evidence of that size in plain view on the front seat of his car — but more compelling, how did the hitchhiker get the rocks underneath the floor mat which was underneath appellee‘s feet without his knowing it? We do not believe that
Accordingly, we reverse the judgment appealed from and remand the cause for further consistent proceedings.
GUNTHER and POLEN, JJ., concur.