County Criminal Court:  CRIMINAL PROCEDURE – Dismissal – Florida Rule of Criminal Procedure 3.190(d) provides that a motion to dismiss filed pursuant to 3.190 c (4), shall be denied upon the filing by the state of a traverse which denies material facts- state did not deny material facts- Judgment affirmed -State v. Watkins,  No. 03-0425CFAES(Fla. 6th App. Ct. January 18, 2005).

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

STATE OF FLORIDA,  

                        Appellant,                                             Case No: 03-0425CFAES

v.

 

JOSEPH WILLIAM WATKINS,                                 

                        Appellee,

___________________________/

 

 

Appeal from `Pasco County Court

 

County Judge Debra Roberts

 

Michael Harris, Esq.

Attorney for Appellant

 

Mark A. Goettel, P.A.

Attorney for Appellee

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State of Florida's appeal of the trial court's order granting a Motion to Dismiss. After reviewing the briefs and record, this Court affirms the trial court’s decision.

             The appellee was charged by information with discharging a firearm in public.[1] The appellee filed a motion to dismiss, in which he attached an affidavit and a diagram.  Appellee alleged that he fired a single shot in the ground more than 250 feet away from the road, he submitted the diagram to show that the shot was fired in the area of a mobile home, a metal building, and a barn.  Appellee further alleged that the shot was fired from a shotgun which was seized by the Pasco County Sheriff's Office ("PCSO") and that the shotgun pellets did not deflect from the ground.  The affidavit of appellee also acknowledges that two "alleged victims" were in the area on the roadway collecting cans and that they stated they heard the gunshot. The state filed a traverse in which it denied the shot was fired from a shotgun which was seized by the PSCO and that the shotgun pellets did not deflect from the ground.  The state added the following facts:  once the shot was heard the defendant was seen running toward the victims in a threatening manner carrying the rifle and aiming the rifle at the victims. 

            The trial court granted the motion to dismiss finding that the denials and added facts do not dispute the defendant's material allegations nor meet the minimum requirements of a prima facie case of discharging a firearm in public.  This Court agrees.  Specifically,  Florida Statute 790.15 provides that ". . . any person who knowingly discharges a firearm in any public place or on the right of way of any paved public road, highway, or street or whosoever knowingly discharges any firearm over the right of way of any paved public road, highway, or street or over any occupied premises is guilty of a misdemeanor of the first degree . . .".  Therefore, it is irrelevant whether or not the shotgun pellets went into the ground.  Accordingly, the traverse denies no material facts. See Florida Rule of Criminal Procedure, 3.190(d).

 

            IT IS THEREFORE ORDERED that the judgment is affirmed.

            DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of January,  2005.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Office of the State Attorney

Office of the Public Defender

 

 

 

 


[1]  ". . . any person who knowingly discharges a firearm in any public place or on the right of way of any paved public road, highway, or street or whosoever knowingly discharges any firearm over the right of way of any paved public road, highway, or street or over any occupied premises is guilty of a misdemeanor of the first degree . . ." Fla. Stat. 790.15.  Public place is defined in Florida Standard Jury Instruction (criminal) 10.6 as "any place intended or designed to be frequented or resorted to by the public."