County Criminal Court:  CRIMINAL LAW – DUI - Actual Physical Control – no error in denying defendant’s motion to dismiss – record shows that State did file traverse to motion – actual physical control, including subsumed issue of vehicle operability, was a factual question for the jury to decide -- Order affirmed.  Krivanek v. State, No. 03-00040 APANO (Fla. 6th Cir. App. Ct. June 16, 2004).









vs.                                                                                            Appeal No. CRC 03-00040 APANO






Opinion filed ________________________


Appeal from Judgment of Guilt

Judge Sonny Im


Joseph M. Davis, Esquire

Attorney for Appellant


Cheryl Hoover, Esquire

Attorney for Appellee




            THIS CAUSE came before the Court on appeal, filed by Mark Anthony Krivanek (Krivanek), from the Judgment of Guilt and Placing Defendant on Probation, entered April 30, 2003.  Krivanek pled no contest to the charge of DUI after the trial court denied Krivanek’s Motion to Dismiss.  Upon review of the briefs, the record, and being otherwise fully advised, the Court affirms the Judgment as set forth below.

            The record shows that on June 25, 2002, at approximately 3:25 a.m., Trooper Christian Pimental of the Florida Highway Patrol was dispatched to investigate a vehicle stopped in the inside emergency lane of westbound S.R. 93 (Howard Franklin Bridge) facing eastbound.  Krivanek was found unconscious behind the wheel of the vehicle with his head leaning against the window.  The head lights and brake lights were off and the car’s engine was not running.  A set of keys was on the center console.  Krivanek was initially unresponsive and it took Trooper Pimental approximately one minute to wake Krivanek.  Krivanek stumbled out of the car and used the vehicle and bridge wall for support.  After detecting several signs of impairment, Trooper Pimental requested Krivanek to perform field sobriety tests.  Krivanek did poorly on the HGN and then refused to perform any other tests.  Krivanek was arrested and charged with DUI.             On December 17, 2002, Krivanek filed a Motion to Dismiss, pursuant to Florida Criminal Procedure Rule 3.190(c)(4), asserting that there was insufficient evidence that Krivanek was in actual physical control of a vehicle.  On January 6, 2003, the trial court conducted a hearing on the matter and denied the Motion; the trial court considered the State’s Demurrer to the Motion, hand-delivered to Krivanek on January 6, 2003, and filed on January 8, 2003.  On March 19, 2003, Krivanek filed an Addendum to Previously filed Motion to Dismiss, adding argument that there was not evidence that the vehicle was operational at the time of the traffic stop.  The State responded with a Traverse and Motion to Strike, both filed March 28, 2003.    Krivanek filed a Second/Supplement [sic] Motion to Dismiss on April 14, 2003, which raised no new argument, and the State responded with a Motion to Strike, filed on April 17, 2003.  The trial considered, or reconsidered, all the motions and argument of counsel and, on April 23, 2003, entered an order denying Krivanek’s Motion to Dismiss.  Thereafter, Krivanek changed his plea to no contest reserving his right to appeal.

            Krivanek argues that it was error for the trial court to deny his Motion to Dismiss, filed pursuant to Rule 3.190(c)(4), which the State did not traverse and where actual physical control of the vehicle had not been established as a matter of law.  Although there were procedural irregularities in the proceedings below, the Court finds that the State did file both a Demurrer to the first Motion to Dismiss and a Traverse to Krivanek’s Addendum. [1]   Although the State did not file another traverse following the Second/Supplemental Motion to Dismiss, the Court finds that the trial court properly considered the Demurrer and Traverse in making its ruling, which encompassed both motions, [2] particularly given the fact that the second motion to dismiss was filed just three days before the hearing on the matter and did not raise any new material allegations.  Further, neither party objected to the manner in which the trial court considered the motions. 

            Accordingly, the Court finds that the ruling to deny the Motion to Dismiss must be affirmed.  The trial court correctly resolved all inferences against Krivanek in implicitly finding that the State had set forth a prima facie case of DUI and in explicitly finding that the issue of actual physical control, including the subsumed issue of vehicle operability, was a factual question for the jury to decide.  See Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003)(stating that “the State is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant”); see also Krivanek v. Department of Highway Safety and Motor Vehicles, No. 02-7769CI-88A (Fla. 6th Cir. App. Ct. June 19, 2003)(affirming the hearing officer’s conclusion, as the fact finder, that Krivanek was in actual physical control of a motor vehicle); State v. Boynton, 556 So.2d 428, 429 (Fla. 4th DCA 1989)(providing that fact of inoperativeness of vehicle is one factor to be considered when deciding whether a person was in actual physical control in DUI case).


            As in Boynton, there is sufficient circumstantial evidence in this case that Krivanek had operated the vehicle prior to its becoming parked on the Howard Franklin Bridge, including that Krivanek was found in the driver’s seat with the keys on the center console.  See Boynton, 556 So.2d at 429; See e.g. State v. Law, 559 So.2d 187, 188 (Fla. 1989)(explaining the circumstantial evidence rule).  Indeed, no other theory has been presented. 

            Therefore, it is, 

            ORDERED AND ADJUDGED that the Judgment of Guilt and Placing Defendant on Probation is affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of June 2004.




                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge





                                                                        IRENE SULLIVAN

                                                                        Circuit Judge





                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

Copies furnished to:

Judge Sonny Im


Joseph M. Davis, Esquire

3333 W. Kennedy Boulevard, Suite 102

Tampa, FL  33602


Cheryl Hoover, Esquire

Assistant State Attorney

[1] Krivanek states in his brief that he voluntarily withdrew his Addendum following the State’s Motion to Strike, filed with the State’s Traverse, on March 19, 2003.  Although this assertion is not supported by the record, it has no bearing on the outcome of this appeal.

[2] This is apparent from the language used in the order, to wit, “[t]he foregoing cause was re-heard on April 17, 2003, upon the Defendant’s Second/Supplement Motion to Dismiss . . .”