Debunking Myths About
The Motion To Dismiss
If an attorney believes the State’s evidence is insufficient to establish each element of the charges, he can file a motion to dismiss under Florida Rules of Criminal Procedure 3.190(c)(4). However this is rarely done due to two myths about the C4 motion to dismiss. The first myth is that the Defendant must swear to the facts in the motion, and the second is that if the State files a traverse the motion must be denied.
MYTH ONE: THE DEFENDANT MUST SWEAR TO THE MOTION
Most attorneys believe that the Defendant must swear to the facts in the motion, and therefore admit to those facts in order to file a motion to dismiss. This however is not the case. The rule only says that the motion must be sworn to. It does not say that the motion must be sworn to by the Defendant. This issue was addressed in State v. Betancourt, 616 So.2d 82 (Fla 3rd DCA 1993) where the court stated the purpose of the rule that the motion be sworn to is to subjection those with personal knowledge to perjury. The court goes to say that this objective is met if the affiant is merely a witness rather than the Defendant himself. Id.
While the purpose of the rule is to subject witnesses with knowledge to perjury, prosecutors frequently try to use the rule to get a confession out of the Defendant. In fact if you file a motion to dismiss that is not sworn to by the Defendant, the State will likely try to claim the motion is insufficient citing State v. Upton, 392 So.2d 1013, 1016 (Fla. 5th DCA 1991). However Betancourt cites to Upton, and rejects the States position that the motion must be sworn to by the Defendant.
MYTH TWO: IF THE STATE FILES A TRAVERSE
THE MOTION MUST BE DENIED
The second myth that frequently prevents Defendants from filing a motion to dismiss under Florida Rules of Criminal Procedure 3.190(c)(4) is that if the State files a traverse the judge must deny the motion. However this is not the case. In State v. Kalogeropolous, 758 So.2d 110 (Fla. 2000) the Florida Supreme court stated that in order to overcome a motion to dismiss the State must set meet the minimal requirements of a prima facie case. Id.
If the defense believes the evidence is insufficient it is often a good idea to file a C4 motion to dismiss. Under Betancourt and Kalogeropolous the Defendant should be able to test the sufficiency of the evidence without the threat of admitting to the facts, or facing a harsher sentence if convicted at trial. Also being able to file a motion to dismiss without admitting the facts often results in a better resolution for the client.
Finally I think it is important to note that the purpose of the rule that the motion be sworn to is to subject those with personal knowledge to perjury. Therefore the Defendant should be able to file a motion to dismiss based on any testimony that is sworn to including arrest affidavits, transcripts, codefendant’s trials, or any other sworn document.