IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

STATE OF FLORIDA,

            Appellant,

vs.                                                                                Appeal No. CRC 99-05992 CFANO

ROBERT CLAIRBORNE,

            Defendant, Appellee.

___________________________________/

Opinion Filed _________________

Appeal from Final Order on Motion to Dismiss

County Court, Criminal Division, Pinellas County

The Honorable William H. Overton

Henry L. Johnson, Esquire
Assistant State Attorney
P.O. Box 5028
Clearwater, FL 33758
Attorney for Appellant

Shea Thomas Moxon, Esquire
550 N. Reo Street, Suite 300
Tampa, FL 33609-1065
Attorney for Appellee

ORDER AND OPINION

            Appellee was arrested pursuant to § 316.193, Fla. Stat. (1999), for driving under the influence (DUI).  Prior to trial, Appellee filed a Motion to Dismiss the charge under Florida Rule of Criminal Procedure 3.190(c)(4), and the State filed a Traverse.  The trial judge issued an Order Granting Defendant’s Motion to Dismiss after hearing testimony on the facts necessary for deciding the Motion as allowed by Florida Rule of Criminal Procedure 3.190(d).  The State now appeals that decision.

A motion to dismiss is an extreme sanction that should be utilized only where the most favorable construction to the State would not establish a prima facie case.  State v. Smith, 348 So. 2d 637 (Fla. 2d DCA 1977).  Moreover, all inferences are to be resolved against the defendant. State v. DeJerinett, 283 So. 2d 126 (Fla. 2d DCA 1973).  As such, the facts before the trial court were as follows: Police officers found Appellee and a passenger asleep in Appellee’s vehicle at approximately 2:50 a.m.  The vehicle was parked illegally, angled against the curb in a traffic lane, with its headlights on and the keys in the ignition.  The hood was warm to the touch.  Appellee was seated behind the wheel and was awakened by officers.  Appellee produced his driver’s license and stated neither that he was not driving, nor that his vehicle was inoperable.  Additionally, the passenger did not say he was driving and other than Appellee, the passenger, and the officers, there was no one else around.  Appellee admitted to drinking two beers and was arrested after the administration of field sobriety exercises. Although the engine would start, the truck’s transmission could not be placed in gear, so the officers were unable to fulfill Appellee’s request to move the vehicle to a nearby parking lot.  Officer Ferguson testified that when the vehicle would not go in gear, he noticed a puddle of transmission fluid beneath the truck that was not there before.  He stated the fluid had leaked out of the vehicle during the time he was conducting the investigation.

In a light most favorable to the State, these facts support a prima facie case that the Appellee was in actual physical control of his vehicle while under the influence of alcoholic beverages.  Control was the element of the crime found lacking by the trial court.  However, to make its case, the state is not required to prove, as a part of the element of actual physical control, that the vehicle is capable of immediate self-powered mobility. Jones v. State, 510 So. 2d 1147, 1149 (Fla. 1st DCA 1987).  Instead, the conclusion that an intoxicated defendant has operated a vehicle on a public street is often proved only by circumstantial evidence.  See, e.g., State v. Boynton, 556 So. 2d 428 (Fla. 4th DCA 1990); see also, Griffin v. State 457 So. 2d 1070 (Fla. 2d DCA 1984).  In accord, the facts before the trial court amount to circumstantial evidence of the recent operation of Appellee’s truck.  For instance, Appellee was behind the wheel, the headlights were on, the vehicle was angled against the curb, the keys were in the ignition, and the hood was still warm when the officers approached the vehicle.  Moreover, two inferences, that the truck was only recently inoperable due to the transmission fluid leak and that the Appellee fully expected the truck to be operable when he asked that it be moved, also support the State’s case-in-chief.   Thus, in the light most favorable to the State, the facts presented do state a prima facie case against the Appellee for DUI. 

The trial judge notes, as does this Court, that many of the appellate decisions that focus on the issues of “actual physical control” and “operability” involve findings of operability where circumstantial evidence points toward the motor vehicle having been involved in an accident prior to its becoming disabled and inoperable.  See, e.g., State v. Boynton, 556 So. 2d 428 (Fla. 4th DCA 1989); see also, State v. Benyei, 508 So. 2d 1258 (Fla. 5th DCA 1987).  However, these cases do not preclude a finding of operability under all other circumstances.  Rather, these cases, like the instant case, simply involve circumstances where recent operability may be inferred. 

In granting the Motion to Dismiss, the trial judge stated that Appellee had not admitted to driving the vehicle prior to its becoming disabled, and that the circumstantial evidence suggesting such was not credible.  However, when all circumstances permit more than one inference, those inferences must be resolved against the defendant.  State v. DeJerinett, 283 So. 2d 126 (Fla. 2d DCA 1973).  Moreover, questions of credibility are for the trier of fact and should not be considered by the trial judge in determining whether there exists a genuine issue of material fact.  State v. Fort, 380 So. 2d 534 (Fla. 5th DCA 1980).  As such, the Order Granting Defendant’s Motion to Dismiss should not have been issued.

Finally, the State asserts that its Traverse alone should have required denial of the Motion to Dismiss.  In response, Appellee filed State v. Kalogeropolous, 25 Fla. L. Weekly D360 (Fla. May 11, 2000)(subject to revision or withdrawal), as supplemental authority.  Kalogeropolous held, pursuant to Florida Rule of Criminal Procedure 3.190(d), that if a respondent details a great number of the facts surrounding the case and alleges that there are no material disputed facts in a motion to dismiss, the State must file a specific traverse to “specific material fact or facts” in order to defeat the motion. See id. (citing Florida Bar re Florida Rules of Criminal Procedure, 343 So. 2d 1247, 1255-56 (Fla. 1977)).  With that holding, this Court is obligated to agree.  As such, the State’s Traverse in the instant case was insufficient to require denial of the Motion to Dismiss.  However, the trial court must correctly interpret the legal significance of the undisputed facts before it and deny a motion to dismiss if the facts support a prima facie case.  Moreover, the trial judge exercised his discretion to “receive evidence on any issue of fact necessary to the decision on the motion.” Fla. R. Crim. P. 3.190(d).  As outlined above, it is the trial court’s decision regarding the legal significance of those facts that requires reversal of the Order Granting Defendant’s Motion to dismiss. 

            ORDERED AND ADJUDGED that the Order Granting Defendant’s Motion to Dismiss is reversed and the case remanded for further proceedings not inconsistent with this Opinion.

            DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida, this 26th day of May 2000.

 

  ____________________________
CHARLES W. COPE
Circuit Judge, Appellate Division
 

 

Copies Furnished To:

The Honorable William H. Overton

Henry L. Johnson, Esquire
Assistant State Attorney
PO Box 5028
Clearwater, FL 33758
Attorney for Appellant

Shea Thomas Moxon
550 N. Reo Street, Suite 300
Tampa, FL 33609-1065
Attorney for Appellee

Staff Attorney, Appellate Division