As a criminal defense attorney, I file lots of motions. The reasons for filing motions vary, but the basic principle here is that I'm asking the court to do something for me. Say, for example, I want a witness to not give his opinion on a certain topic, I file what's called a Motion in Limine (limiting the testimony of that witness). Or, let's say I want to prevent the state from introducing certain items into evidence, I file a Motion to Suppress that evidence. Or, should there be a reason to dismiss the charges, I will file a Motion to Dismiss. And so on, and so on.
There are many different types of Motions to Dismiss. Without going into the boring details, it's important to know that some Motions to Dismiss (called (c)(4) motions, technically) are filed based upon certain facts which are sworn to by a witness. If the state does not agree with the sworn facts of the Motion to Dismiss, they file what is called a "traverse". If the "traverse" is legally sufficient (we'll get to what that means in a moment), the state wins and the motion is denied. This type of motion basically says, judge, we all agree as to what happen in this case, but what happen does not constitute a crime. Technically speaking, the function of a (c)(4) motion to dismiss is to ascertain whether or not the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case of guilt of the accused. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981) citing State v. Davis, 243 So.2d 587 (Fla.1971). "The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute". State v. Pasko, 815 So. 2d 680, 681 (Fla. 2nd DCA 2002).
For example, take a "wrong place at the wrong time" situation, like a shoplifting or theft charge, in which multiple people are arrested even though only one person actually stole an item. An overly aggressive loss prevention officer decides to have everyone in the group detained, and the whole group is eventually arrested. A "(c)(4)" motion to dismiss in such a case essentially says, hey, we all agree the defendant was hanging out with the wrong crowd, but the defendant played no part in the theft, his friend did all the stealing, the defendant was just standing next to him while he was stealing, but there's no evidence the defendant knew his friend was going to do such. Being in close proximity to a crime is not guilt of such, so judge, please dismiss the theft charges. With just those facts, the motion to dismiss would be granted. But, the state could traverse such a motion by claiming that, sure, the defendant didn't steal anything, but he was seen looking around, and as such, we believe he was a lookout, so this motion to dismiss should be denied based upon the fact that the defense and state do not agree as to the defendant's involvement in this case.
Now, having practiced criminal defense for over twenty years in central Florida, an important aspect of every case is understanding the judge you're dealing with. Not every judge comprehends every legal issue a defense attorney throws up there. But, you can tell instantly the intelligence level of a judge if you hear the following response to the state's filing of a traverse: "Well, the state has filed a traverse, so I'm denying your motion to dismiss. Next case." You see, the filing of a traverse does not automatically give the state victory, yet intellectually lazy judges tend to think that way. In the case we're about to review, a judge facing several trafficking charges decided that the state's traverse did not create an automatic dismissal, he dismissed the charges in spite of the state's traverse, and we want to review this case as a good example of how these issues should be examined.
The case is State v. Cisneros, 106 So.3d 42 (Fla. 2nd DCA 2013). Cisneros was charged with Racketeering (RICO), trafficking in cocaine, and conspiracy to traffic in cocaine. His defense attorney moved to dismiss the charges, and the state filed a traverse. Now, some lesser judge's knee jerk reaction here may have been to simply deny the motion to dismiss under the claim that the state's traverse was sufficient. But this judge actually did his job, and determined that the state's traverse was not sufficient to warrant automatic denial of the motion. Why, you ask?
Cisneros was accused of trafficking in cocaine in Hillsborough County. The motions to dismiss essentially stated that there was no evidence of criminal activity in Hillsborough County. The state's "traverse" noted that the RICO ringleader's cell phone was registered in Hillsborough, the defendant maintained an address in Hillsborough, and that there was evidence of a phone conversation in which Cisneros was discussing his travels on I-75, a highway in Hillsborough County. Rightfully, the judge held that the traverse did not create a "material" factual dispute, as there was still no evidence that Hillsborough County was the proper venue. The state appealed this judge's dismissal of the RICO charge and the trafficking charge, and the appeals court agreed that some of the charges should have been dropped (and that dismissals involving venue should simply be transferred rather than dismissed).
What most prosecutors fail to realize is that only a traverse involving "material" issues will get a defense motion to dismiss denied. The 3rd DCA in State v. Nunez held that the state's traverse was insufficient to survive the defendant's motion to dismiss, because "a traverse requires more than a did not, did so swearing match." 881 So. 2d 658 (Fla. 3rd DCA 2004). It's sad to say, but most prosecutor traverses involved a "did not, did so swearing match", rather than addressing material factual disputes. It's even sadder to say that some judges let them get away with it. At least Cisneros had the good fortune of a judge who understands motions to dismiss.