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What is a Motion to Dismiss?

Posted in Blog on October 15th, 2013

What is a Motion to Dismiss?

A Motion to Dismiss in a criminal case is where the defense is asking the judge to dismiss the case.  A Motion to Dismiss is very misunderstood.  It is very rarely used and even more rarely granted in criminal cases.

The three most common forms of Motions to Dismiss are:

1) A Motion to Dismiss based up the statute of limitations.

2) A Motion to Dismiss based upon a Speedy Trial.

3) A Motion to Dismiss based upon Florida Rule of Criminal Procedure 3.190(c)(4).

Motion to Dismiss based upon the Statute of Limitations  

The Statute of Limitations is the time period that the government has to bring formal criminal charges against a person that they believe committed a crime.  The Time period begins to run at the completion of the alleged criminal act.

A Motion to Dismiss based upon Statute of Limitations is where the defense is alleging that the prosecution is time barred as it was commenced outside of the time allowed by the Statute of Limitation.

Florida has codified the Statute of Limitation in Florida Statute 775.15.  The statute has many specific nuisances.  Listed below is the general statute of limitations in criminal cases.  There are certain crimes have no Statute of Limitation, and for other crimes there are offense specific limitation periods that supersede the general Statute of Limitations.

Felony/Misdemeanor Statute of Limitations

Charged Crime                                                Time Limitation

Capital Felony                                                 No Time Limitation

Life Felony                                                       No Time Limitation

1st Degree Felony                                            4 Years

2nd Degree Felony                                           3 Years

3rd Degree Felony                                            3 Years

1st Degree Misdemeanor                                 2 Years

2nd Degree Misdemeanor                               1 Year

Violation of Probation                                    No Time Limitation

Any Theft Offense                                            5 Years

Abuse, Neglect, or Abuse of the

Elderly or Disabled Adults                             5 Years

Pursuant to Florida Statute 775.15

(4)(a) Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.

(b) A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

Motion to Dismiss based upon a Speedy Trial

A motion to dismiss based up a violation of the Speedy Trial Rule can be filed when the State has failed to bring the accused to trial during the speedy trial time period with no fault of the delay being attributable to the accused.

Below are the two separate type of speedy trial that Florida law recognizes.  If the state were to violate either one of the two types of speedy trial rules, then the accused would be able to file a Motion for Discharge (Motion to Dismiss).

There are two different types of speedy trial rights that exist for a criminal defendant in Florida.

Natural Speedy: A defendant charged with a criminal offense in Florida is entitled to the statutory speedy trial rights provided by Florida Law. This means that the defendant is entitled to be brought to trial within 90 days for a misdemeanor crime or 175 days for a felony.

Florida Rule of Criminal Procedure 3.191(a) provides that a defendant must be brought to trial within 90 days of being arrested if he is charged with a misdemeanor and within 175 days of being arrested if he is charged with a felony.

Florida Rule of Criminal Procedure 3.191(a) is not self-executing but must be triggered by the defendant’s filing a notice of expiration of the speedy trial period.

Florida Rule of Criminal Procedure 3.191(p)(2) states that “At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.”

(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Demand for Speedy Trial: A defendant charged with a criminal offense can at any time
demand a speedy trial even if it has been previously waived.

Florida Rule of Criminal Procedure 3.191(b)

Speedy Trial upon Demand. –Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (g), every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the court a separate pleading entitled “Demand for Speedy Trial,” and serving a copy on the prosecuting authority.

(1) No later than 5 days from the filing of a demand for speedy trial, the court shall hold a calendar call, with notice to all parties, for the express purposes of announcing in open court receipt of the demand and of setting the case for trial.

(2) At the calendar call the court shall set the case for trial to commence at a date no less than 5 days nor more than 45 days from the date of the calendar call.

(3) The failure of the court to hold a calendar call on a demand that has been properly filed and served shall not interrupt the running of any time periods under this subdivision.

(4) If the defendant has not been brought to trial within 50 days of the filing of the demand, the defendant shall have the right to the appropriate remedy as set forth in subdivision (p).

Motion to Dismiss based upon Florida Rule of Criminal Procedure 3.190(c)(4)

A Motion to Dismiss based upon Florida Rule of Criminal Procedure 3.190(c)(4) is where the accused asserts that all of the factual allegations made by the government are true but they do not constitute a crime.

Florida Rule of Criminal Procedure 3.190(c)(4):

There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
The facts on which the motion is based should be alleged specifically and the motion sworn to.

(d) Traverse or Demurrer. The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in the traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss. The demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.

For more information on the various types of Motions to Dismiss and to see if they are applicable in your specific case, please call David J. Sobel at 954-383-3000.