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 filed a traverse in which the state not only denied material facts but also  added additional facts-error to grant motion to dismiss- Judgment reversed-State v. Sengstock, No. 03-2219CFAES(Fla. 6th App. Ct. November 15, 2004).

 

 

 

 

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,

 

vs.                                                                    Appeal No: 032219CFAES

                                                                        Lower Ct: CTC 02-05093MMAWS17

MICHAEL SENGSTOCK,

Appellee.

____________________________/

 

 

 

 

 

Opinion filed _________________________.

 

Appeal from an order in Pasco County Court

 

County Judge Seaver 

 

Eric J. Herrmann

Office of the State Attorney

 

David E. Olson, Esq.

 

 

 

            ORDER AND OPINION

 

            This matter came before the court on the State of Florida's appeal of the trial court's order granting defendant Michael Sengstock's Motion to Dismiss.  This court has jurisdiction. Fla. R. App. P. 9.030(c).   The ruling of the trial court is REVERSED.

            On July 31, 2002, Deputy Housel of the Pasco County Sheriff's Office was dispatched to the defendant's residence, in response to a criminal mischief complaint and possible neighbor dispute. According to the arrest report, the officer observed defendant in the road yelling and screaming.  He advised defendant to stop screaming and to go back into his home. Defendant refused and continued screaming in the middle of the road.  Two separate witnesses advised the officer that defendant's action were disturbing their peace and tranquility.  Defendant was arrested for disorderly conduct.

            Defendant filed a motion to dismiss pursuant to Fla. R. Crim. P., Rule 3.190 (a) (b)(c) and (c)4, in which he argued he was not screaming and yelling and that he had witnesses for the defense that would testify to that effect.  Defendant argued, in the alternative, even if defendant was screaming and yelling, the conduct did not violate any laws and was well within the defendant's constitutional rights.  The motion  was supported by two affidavits.[1] The state filed a traverse in which it alleged that the deputy along with three other witnesses observed defendant's yelling and were disturbed by defendant's behavior.  The state further alleged that some of the neighbors were awakened by the defendant's actions.  Additionally, the traverse alleged that neither of the two defense witnesses who submitted affidavits to support the motion to dismiss were present during the incident, and neither made any reports to the deputy who was dispatched to the location. With regard to whether or not the actions amounted to 'disorderly conduct', the state argued that the constitutionality of the statute is a question of law which is not appropriately asserted in a motion to dismiss. Finally, the state asserted that it had witness testimony and evidence to support the charges of disorderly conduct.

            The trial court granted appellee's motion to dismiss.  This was error. 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. (Emphasis added).  In this case, the state filed a traverse in which the state not only denied material facts but also  added additional facts, i.e., that the deputy and other witnesses observed defendant's yelling and that some of the neighbors were awakened by defendant's actions.  Additionally, the traverse alleged that two of the defense witnesses who provided affidavits were not even present during the incident nor made any reports to the deputy.   See State v. Kalogeropolous,  758 So. 2d 110 (Fla. 2000)(to defeat a motion to dismiss the state need only specifically dispute a material fact alleged by the defendant or add additional material facts that meet the minimal requirement of a prima facie case and defeat a motion to dismiss);  Boler v. State, 678 So. 2d 319, 323 (Fla. 1996)(if a material fact is disputed, denial of the motion to dismiss is mandatory).   Accordingly, the trial court erred in granting appellee's motion to dismiss.

 

IT IS THEREFORE ORDERED that the judgment be REVERSED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __

day of November, 2004.

 

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Eric J. Herrmann

Office of the State Attorney

 

David E. Olson, Esq.

                       


[1] A review of the jurat in defendant's Motion to Dismiss reveals that it is procedurally defective as defendant  simply recited that the facts contained in the motion were true and correct "to the best of his knowledge."   Such an oath is ineffective, and, therefore, the motion was insufficient.  State v. Rodriguez  523 So.2d 1141 (Fla.,1988).  However, the failure of the state to move to strike the motion results in waiver of the defect.  Goodmakers v. State, 450 So. 2d 888 (Fla. 2 DCA 1984).