State v. GutierrezState v. Gutierrez
The STATE of Florida, Appellant,
v.
Jose GUTIERREZ, Appellee.
District Court of Appeal of Florida, Third District.
Robert A. Butterworth, Atty. Gen. and Avi J. Litwin, Asst. Atty. Gen., for appellant.
Arthur J. Morburger, Weinstein Bavly & Moon, and Alvin N. Weinstein, Miami, for appellee.
Before SCHWARTZ, C.J., and JORGENSON and GREEN, JJ.
GREEN, Judge.
The State appeals from an order granting the defendant's sworn motion to dismiss the information. We reverse.
*927 Defendant, along with a codefendant, were charged by аn information with burglary of an occupied dwelling and petit theft. Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), thе defendant filed a sworn motion to dismiss asserting that there were no disputed material facts and that the undisputеd material facts failed to establish a prima facie case of guilt. In support of his motion, defendаnt incorporated by reference the sworn deposition testimonies of several of the State's witnesses.
One of the State's witnesses, Urrick Francois, initially testified at his deposition[1] that he observed the defendant and codefendant break into a kiosk known as Jessy's Place at the Town and Country Mall and take clothing аnd/or other merchandise. During later questioning, at the deposition, Francois seemingly recanted his earlier testimony and stated that he did not observe the defendant or codefendant break into the kiosk or seе any items belonging to Jessy's Place in the immediate possession of the defendant or codefendant. Defendant relied in large part upon Francois' latter favorable testimony to support his motion to dismiss.
Dеfendant also relied upon the deposition testimony of Ramon Martinez, another witness for the State. Martinez was employed as a security supervisor at the mall and testified that he didn't see anyone attempting to break into the kiosk or see the defendant or codefendant remove merchandise therefrom.
In response to the motion to dismiss, the State filed a traverse denying generally the assertions made in the motion. In its traverse, the State failed to execute the form of affidavit attesting to the fact that the traverse was being executed in good faith and that the State had received sworn testimony in support of the dеnials made in the traverse.
On appeal, the State argues that its unsworn traverse alone was sufficient to defeat the defendant's motion to dismiss pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure. We do not agree. Initially, it should go without saying that any denial by the State must be in good faith, and not be based upon speculation, conjecture, presumption or assumption. Ellis v. State,
This finding, however, is not dispositive of the motion to dismiss because the trial court must still determine whether the defendant met his initial burden of demonstrating that there were no genuine issues of material fact and the undisputed material facts failed to establish a prima facie case of guilt. As the court in Ellis put it:
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.
The conflicting deposition testimony оf Urrick Francois as to whether he witnessed the defendant's commission of the charged acts was sufficient аlone for the trial court to deny summarily the motion to dismiss. State v. Fetheroff,
We therefore reverse the order below and remand for further proceedings cоnsistent herewith.
NOTES
Notes
[1] It should be noted that the State was not represented by counsel at any of these depositions. All of the witnesses' answers were in response to questions propounded by defense counsel.