COUNTY CRIMINAL COURT: CRIMINAL PROCEDURE Ė Dismissal Ė Presence of disputed material facts precluded dismissal. Order of dismissal reversed. State v. Drewes, No. CRC 05-37 APANO, (Fla. 6th Cir.App.Ct. March 6, 2006).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

STATE OF FLORIDA

 

††††††††††† Appellant,

v.                                                                                                                                           Appeal No. CRC 05-37 APANO

UCN522005AP000037XXXXCR

THOMAS J. DREWES

 

††††††††††† Appellee.

_________________________________/

 

Opinion filed _____________________.

 

Appeal from an order entered by the

Pinellas County Court

County Judge Patrick Caddell

 

Donald P. Gibson, Esq.

Assistant State Attorney

 

Michael Babboni, Esq.

Attorney for appellee

ORDER AND OPINION

††††††††††† (J. Demers)

 

††††††††††† THIS MATTER is before the Court on the Stateís appeal from an order entered by the Pinellas County Court granting the defendantís motion to dismiss. After reviewing the briefs and record, this Court reverses the decision of the trial court.

††††††††††† The defendant filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), and the State filed a traverse in response. The defendant claimed that the undisputed facts did not demonstrate a prima facie case. In its traverse, however, the State contended that there were material disputed facts. Specifically, the State contended there were witnesses to the incidents, and that there was conflicting evidence from the alleged victim. That is where a trial courtís inquiry should end. See Boler v. State, 678 So.2d 319 (Fla. 1996). In this case, however, the trial court proceeded to informally test the Stateís case by inquiring of some of the witnesses to the incidents. They were not under oath. This procedure is not in accord with the rule. In considering a motion to dismiss a trial court must not resolve factual disputes; that is for the trier of fact.

Moreover, the trial courtís inquiry did not resolve all factual issues. There was conflicting evidence from the alleged victim herself. In addition, there was an independent witness, the alleged victimís friend, to the second incident. This independent witness was not questioned by the trial court. Thus, even if the testimony of the two alleged witnesses were discounted, there still existed some evidence to support the Stateís charge. It was, therefore, error for the trial court to dismiss the charges.

††††††††††† IT IS THEREFORE ORDERED that the order granting the defendantís motion to dismiss is reversed, and this case is remanded to the trial court for further action consistent with this opinion.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of February, 2006.

 

___________________††††††††††††††††††††††††††††††††††††††††††††††††††††††††† __________________

David A. Demers††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Robert J. Morris, Jr.

Circuit Judge††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

††††††††††††††††††††††††††††††††††††††††††††††† _________________

††††††††††††††††††††††††††††††††††††††††††††††† Irene H. Sullivan

††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

cc:††††††† State Attorney

††††††††††† Judge Caddell

††††††††††† Michael Babboni, Esq.