FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Hernando County, Stephen E. Toner,
Moody, Attorney General, Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona Beach, for Appellant.
S. Purdy, Public Defender, and Kathryn Rollison Radtke,
Assistant Public Defender, Daytona Beach, for Appellee.
State of Florida challenges the trial court's order
granting Ruoshawn Randolph's Florida Rule of Criminal
Procedure 3.190(c)(4) motion to dismiss and the court's
denial of its ore tenus request for leave to file a traverse.
We hold the trial court did not abuse its discretion in
denying leave to file a traverse but nonetheless erred in
granting Randolph's motion to dismiss because the
inherently contradictory motion created a disputed issue of
State filed a multi-count information and in count I, charged
Randolph with driving while license canceled, suspended, or
revoked (habitual offender) in violation of sections
322.34(5) and 322.264, Florida Statutes (2017). Randolph,
citing rule 3.190(c)(4), filed a sworn motion to dismiss that
motion, Randolph claimed that he never obtained his
driver's license, and therefore, under the authority of
State v. Miller, 193 So.3d 1001 (Fla. 3d DCA 2016),
approved, 227 So.3d 562 (Fla. 2017), could not be
charged under section 322.34(5). In support, Randolph
attached to his motion his six-page Florida driving record.
Randolph argued his driving record demonstrated he was issued
a driver's license on January 3, 2001, but he never
attempted the driving portion of the exam. He asserted that
without passing the driving test, he was ineligible to
receive a valid driver's license and could only be
charged pursuant to section 322.34(2)(c).
response, the State filed a motion to strike, arguing
Randolph's motion to dismiss should have been filed under
rule 3.190(b) because it raised a defense and not a material
fact issue. Having filed a motion to strike, the State did
not file a traverse to Randolph's motion to dismiss.
hearing on Randolph's motion to dismiss, Randolph argued
the court was obligated to grant his motion because the
State's failure to file a traverse left the motion's
assertions unrebutted. The State again raised the arguments
made in its motion to strike and alternatively argued
Randolph's motion should be denied because the driving
record attached to his motion indicated that, in fact, he was
issued a "Class E" license.
the court explained it would treat the motion as a rule
3.190(c)(4) motion, the State requested leave to file a
traverse. The court denied the request. Regarding
Randolph's motion to dismiss, the court explained that it
would have denied the motion had the State filed a traverse.
The court agreed with the State that the driving record
indicated Randolph was issued a license. Nonetheless, the
court explained: Randolph "says [his license] was never
issued, and I've got nothing to rebut that at this point
in time." In two separate orders, the court granted
Randolph's motion to dismiss, dismissed count I, and
appointed appellate counsel.
review an order on a motion to dismiss de novo. State v.
Taylor, 16 So.3d 997, 999 (Fla. 5th DCA 2009). Like
summary judgment motions in the civil context, a motion to
dismiss must be viewed in the light most favorable to the
State, the nonmoving party. Id. "Only where the
most favorable construction to the State would still not
establish a prima facie case of guilt should a motion to
dismiss be granted." Id. The denial of a
continuance to file a traverse is reviewed for an abuse of
discretion. See, e.g., Darby v. State, 748
So.2d 1069, 1070 (Fla. 5th DCA 1999) ("A trial
court's ruling denying a request for a continuance will
not be disturbed on appeal unless a palpable abuse of
discretion is demonstrated.").
Rule of Criminal Procedure 3.190(c) provides that, at any
time, the court may entertain a motion to dismiss in certain
enumerated circumstances, including when "there are no
material disputed facts and the undisputed facts do not
establish a prima facie case of guilt against the
defendant." Fla. R. Crim. P. 3.190(c)(4). Rule 3.190(d)
provides that factual matters alleged in a motion to dismiss
under subdivision (c)(4) "shall be considered admitted
unless specifically denied by the state in the
traverse." Fla. R. Crim. P. 3.190(d). That subdivision
further provides that a traverse "shall be filed a
reasonable time before the hearing on the motion to
Randolph's motion cited to rule 3.190(c)(4), but the
State nonetheless chose to file a motion to strike rather
than a traverse. As such, we find no abuse in the trial
court's decision to deny the request for a continuance.
See State v. Purvis, 560 So.2d 1296, 1297 (Fla. 5th
DCA 1990) (noting that traverse filed after commencement of
motion to dismiss hearing is untimely). Even so, ...