From Casetext: Smarter Legal Research

State v. Weinstein

District Court of Appeal of Florida, Fourth District
Sep 8, 1993
623 So. 2d 835 (Fla. Dist. Ct. App. 1993)

Opinion

No. 92-2599.

September 8, 1993.

Appeal from the Circuit Court, Broward County, Richard D. Eade, J.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellant.

Louis J. Weinstein, pro se appellee.


We reverse the order of the trial court granting appellee's motion to dismiss pending criminal charges, filed under Florida Rule of Criminal Procedure 3.190(c)(4). Appellee, an attorney, was charged with violations of sections 817.234(8), (9), and 877.02(1) and (3), Florida Statutes (1991). These statutes provide for criminal penalties for solicitation of business for the purpose of filing "motor vehicle tort claims or claims for personal injury protection benefits."

The state had filed a three count information charging appellee with violations of the above statutes for his alleged attempt to solicit legal representation of one Phillip Mortilla while Mr. Mortilla was a patient in a hospital. Appellee filed a sworn motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). He alleged that the facts alleged by the state in the information, taken as true, did not constitute a crime, and that the statutory provisions under which he was charged were unconstitutional. Thereafter, the state filed a traverse, as provided in Florida Rule of Criminal Procedure 3.190(d).

After hearing, the trial court granted appellee's motion, finding that each of the counts failed to allege a crime. The court rejected appellee's challenge as to the constitutionality of the statutes, and this is not raised as an issue on appeal.

The trial court erred in granting appellee's motion, both procedurally and substantively. First, upon the state filing a sworn traverse pursuant to Florida Rule of Criminal Procedure 3.190(d), the rule provides that the trial court shall deny such a motion to dismiss. Secondly, the trial court erred in determining that the facts alleged in the state's information, if taken as true, failed to make out a prima facie case that appellee had committed a crime.

Accordingly, we reverse the order granting appellee's motion to dismiss, and remand for further proceedings.

GUNTHER, POLEN and KLEIN, JJ., concur.


Summaries of

State v. Weinstein

District Court of Appeal of Florida, Fourth District
Sep 8, 1993
623 So. 2d 835 (Fla. Dist. Ct. App. 1993)
Case details for

State v. Weinstein

Case Details

Full title:STATE OF FLORIDA, APPELLANT, v. LOUIS WEINSTEIN, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Sep 8, 1993

Citations

623 So. 2d 835 (Fla. Dist. Ct. App. 1993)

Citing Cases

State v. Walker

The state's traverse denied material allegations of the sworn motion to dismiss and set forth allegations on…

State v. Rodriguez

Although admittedly not "fleshed out," the state's traverse did sufficiently place the material facts in…