vs.                                                                   Appeal No. CRC 00-05378 CFANO




Opinion filed _____________________.
Appeal from Order of Dismissal Pinellas County Court
County Judge Thomas B. Freeman

Donald F. Tinny, Esq.
Assistant State Attorney
Attorney for Appellant

Michael Vincent Laurato, Esq.
Attorney for Appellee


            THIS MATTER is before the Court on the state’s appeal from the trial court’s order granting defendant’s Motion to Dismiss.  After reviewing the briefs and record, this Court reverses the trial court’s decision.

            “A motion to dismiss in a criminal case is analogous to a motion made for summary judgment in civil cases and as such should be granted sparingly.”  State v. Ortiz, 766 So.2d 1137 (Fla. 3d DCA 2000).  Furthermore, “when considering a motion to dismiss, all questions and inferences from the facts must be resolved in favor of the state.”  State v. Paleveda, 745 So.2d 1026 (Fla. 2d DCA 1999).

On June 2, 1999, the defendant was driving his eighteen wheeler tractor-trailer on his delivery route when a motorcyclist allegedly laid down her motorcycle in order to avoid a collision with the defendant.  After the motorcyclist laid her motorcycle down, the defendant pulled his tractor-trailer off of the road into a field next to a business which was the location of his next delivery and which was also within 100 yards of the “accident”.  A Pinellas Park police officer approached the defendant whereby the defendant provided the officer with the information required by Fla. Stat. Sec. 316.062.  The defendant was cited by the officer for leaving the scene of an accident in violation of Fla. Stat. Sec. 316.027(1).  On the Officer’s Worksheet the officer noted that the “defendant said he thought the motorcycle driver over-reached and after she crashed he left because he didn’t feel responsible.”   On March 13, 2000, the state amended the citation to charge the defendant with violating Fla. Stat. Sec. 316.061.

                On March 7, 2000, the defendant filed a Motion to Dismiss under Rule 3.1900(c)(4) Fla. Rules Crim.P. (2000) alleging that the state could not prove a prima facie case against the defendant.  Specifically, the motion alleged that the defendant did in fact comply with the statute by stopping his vehicle close enough to the scene of the accident and providing the required information to law enforcement. 

            On March 13, 2000, and March 15, 2000, the state filed a traverse and amended traverse respectively challenging the allegations in defendant’s motion.  A hearing was set and heard on March 16, 2000.  At the hearing’s conclusion, the trial judge made the following findings:

Thereafter, the trial judge granted the defendant’s motion and dismissed the information filed against the defendant.

            Fla. Stat. 316.061 provides in pertinent part:  “The driver of any vehicle involved in a crash resulting in damage to a vehicle…shall immediately stop such vehicle at the scene, or as close thereto as possible…” The state throughout its traverse, amended traverse and oral argument disputed material facts as to whether the defendant complied with Sec. 316.061 by stopping his vehicle as close to the scene of the crash as possible.  The trial court found that based on the facts of the scene as described in the Motion to Dismiss it was not unreasonable for the defendant to pull his vehicle into the place in which he stopped and remained at the time when the officer contacted him.  In other words, by granting the defendant’s (c) (4) motion, the trial court found that the field, 100 yards away from the scene of the crash where the defendant stopped, was the closest place the defendant could have stopped his vehicle without obstructing traffic.  Paragraph four of the state’s Amended Traverse specifically denied that the defendant could not have stopped his vehicle any other place.  Whether or not the field was, “as close thereto as possible”, is a question of fact for a jury.  “Within the context of a motion to dismiss, it is not the function of a trial court to make factual determinations.”  Paleveda, at 1028.  By deciding on this issue, the trial court improperly invaded the province of the jury.

Furthermore, in paragraph eight of the state’s Amended Traverse, the state agreed that the statute required the defendant to stop his vehicle without obstructing traffic, but added that sec. 316.061 required the defendant to return to and remain at the scene, which the state contends the defendant failed to do.  Additionally, the state added the defendant’s statement that he had seen the motorcyclist crash, but he left because he did not feel that he was responsible.  

There exists material disputed facts as to whether or not the defendant’s stop and subsequent actions were in compliance with Fla. Stat. Sec. 316.061 which should not have been ruled on by the trial judge, but rather should be submitted to a jury as the proper trier of fact.

It is therefore,

ORDERED AND ADJUDGED that the trial court’s Order of Dismissal is reversed. This cause is remanded for further proceedings consistent with this opinion.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 8th day of January, 2001.

Circuit Judge
Primary Appellate Judge


Circuit Judge


Circuit Judge


Copies furnished to:

The Honorable Thomas B. Freeman

Donald F. Tinny, Esq.
Assistant State Attorney
P.O. Box 5028
Clearwater, Florida 33758

Michael Vincent Laurato, Esq.
Austin & Laurato
1902 West Cass Street
Tampa, Florida 33606