State v. Shull

Full title: STATE OF FLORIDA, APPELLANT, v. MELVIN D. SHULL, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Dec 10, 1980

390 So. 2d 1233 (Fla. Dist. Ct. App. 1980)

Opinion

No. 78-2147/T4-231.

December 10, 1980.

Appeal from the Circuit Court, Orange County, Frederick T. Pfeiffer, J.

Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillas, Asst. Atty. Gen., West Palm Beach, for appellant.

Robert S. Sigman, Orlando, for appellee.

NORRIS, WILLIAM A., Jr., Associate Judge.

In an amended information the state charged appellee with one count of second degree grand theft of a pistol and one count of dealing in stolen property, the same pistol. Appellee filed an unverified and unsworn amended motion to dismiss pursuant to the provisions of Rule 3.190(c)(4), Florida Rules of Criminal Procedure, a so-called "c-4 motion." The state filed a traverse to the c-4 motion, and thereafter the trial court granted the amended motion to dismiss as to both counts of the amended information. In dismissing the amended information the trial court erred and we reverse.

The express language of the rule, "[t]he facts on which such motion is based should be specifically alleged and the motion sworn to," reveals the deficiency in appellee's motion. The motion contained neither sufficient factual allegations nor were the purported facts sworn to. In support of the amended motion appellee did file a memorandum of law which alleged facts. However, these alleged facts were not sworn to and were thus insufficient compliance with the requirements of the rule. State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976); State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974); State v. Russo, 299 So.2d 40 (Fla. 4th DCA 1974).

While the procedural deficiency of the amended motion to dismiss requires reversal, we feel it is also appropriate to observe that assuming, arguendo, that the amended motion to dismiss had been sworn to and had incorporated all of the alleged facts in the supporting memorandum of law, the state's traverse was sufficient to raise disputed material issues of fact regarding defendant's knowledge and intent, thereby requiring a denial of the motion to dismiss. State v. Guyton, 331 So.2d 392 (Fla. 4th DCA 1976); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972).

The order dismissing the amended information is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

DAUKSCH, C.J., concurs.

FRANK D. UPCHURCH, Jr., J., concurs without participation in oral argument.