Opinion
No. 3D99-467.
Opinion filed May 3, 2000.
An Appeal from the Circuit Court for Dade County, Roberto M. Pineiro, Judge, L.T. No. 95-36299.
Howard Sohn, for appellant.
Robert A. Butterworth, Attorney General, and Lara J. Edelstein, Assistant Attorney General, for appellee.
Before GERSTEN, SHEVIN, and SORONDO, JJ.
Joseph Demarco ("defendant"), appeals his conviction and sentence, claiming the trial court erred in denying his motion to dismiss. We affirm because precedent establishes that the State's sworn traverse was legally sufficient to defeat the motion to dismiss.
Metro-Dade Police Department Detective Isidro Martinez ("Martinez"), received an anonymous tip that two males, known as "Ted" and "Tommy", were conducting an illegal bookmaking operation using a specific telephone number. Detective Martinez later obtained a physical description of the men and learned that Ted drove a green Ford Explorer.
Detective Martinez then obtained information from the telephone company, showing that the telephone number was subscribed in the name of James Neis with a corresponding address of 100 Kings Point Drive, Apartment 1517, Century Drive, Century Towers Condominium, Miami, Florida. The detective observed a Ford Explorer, owned by Ted Koppel arriving and departing from the building. Additionally, the detective saw two other individuals, identified as Adam Friedeberg and Michael Auciello, arriving and departing from this same building.
Based upon the surveillance information as well as information obtained from a court approved pen register, Detective Martinez obtained a search warrant for Apartment 1517, 100 Kings Point Drive, Century Towers Condominium. When Detective Martinez and approximately eight other police officers and agents executed the search warrant, the defendant opened the apartment door. The police immediately arrested the defendant.
The officers then arrested several other individuals and searched the premises. They located and seized certain items of gambling paraphernalia, including: U.S. currency, tally sheets, score cards, telephones, tape recordings and other assorted documentation and paperwork.
Based upon these facts, the state filed a fourteen-count Information against the defendant and five co-defendants. All defendants were charged in count one of the Information with RICO conspiracy, and the defendant was individually charged in count fourteen with bookmaking.
After conducting discovery, the defendant filed a thirteen-page "Sworn Motion To Dismiss Count I of the Information." The defendant argued that the undisputed material facts were legally insufficient to support a prima facie case of RICO conspiracy, and asserted that the prosecution failed to properly allege, and was incapable of proving, the existence of an "enterprise" in accordance with Section 895.03(3), Florida Statutes (1995).
In response, the State filed a traverse stating "[t]he State denies the allegations contained in paragraphs 4-5, 19, 25, and 28." Paragraph 28 alleged "[t]he only connection even remotely alleged between the respective Defendants is their alleged mutual involvement in this gambling/bookmaking operation during the applicable time period." The traverse further stated: "The State submits that there exist additional facts which would establish the required standard of proof." The court denied the defendant's motion to dismiss, and the defendant appeals his subsequent conviction and sentence.
The defendant entered into a negotiated plea with the state on counts one and fourteen of the Information. He pleaded nolo contendere to the charge of bookmaking and was sentenced to credit for one day served in the Dade County Jail. He pleaded nolo contendere to the charge of RICO conspiracy, specifically reserving his right to appeal the trial court's order denying his sworn motion to dismiss. On the RICO conspiracy charge he was adjudicated guilty and sentenced to three years probation with a special condition that he serve 364 days in the Dade County Jail. He was further ordered to pay $24,000 in costs of prosecution. Execution of sentence was stayed pending this appeal.
The law is well settled that where the State files a traverse which specifically denies the material facts in a defendant's sworn motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), the motion to dismiss must be automatically denied. See State v. Harrell, 588 So.2d 54 (Fla. 3d DCA 1991);State v. Sawyer, 526 So.2d 191 (Fla. 3d DCA 1988). Florida Rule of Criminal Procedure Rule 3.190(d) delineates the use of a traverse and provides:
Florida Rule of Criminal Procedure 3.190(c)(4) reads, in pertinent part:
[T]he court may at any time entertain a motion to dismiss on any of the following grounds:
(4) there are not material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
(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 shall be deemed 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.
This text of the rule explains that, under the circumstance where the motion to dismiss is met with a traverse specifically denying material facts, it "shall be denied." This section does not provide the exclusive means whereby a motion to dismiss will be entertained or rejected.
Thus, in this Court's decision in State v. Blanco, 432 So.2d 633 (Fla. 3d DCA 1983), we found a traverse legally sufficient which stated: "[T]he state specifically denies that the material facts as presented in the defendant's sworn motion to dismiss are the only facts upon which the state would rely during the state's case in chief." The traverse was legally sufficient because the trial court did not have before it all of the material undisputed facts in the case. Therefore it did not have a basis upon which to grant the motion. See State v. Blanco, 432 So.2d at 634. See also Branciforte v. State, 678 So.2d 426 (Fla. 2d DCA 1996) (State's traverse which denied material facts in sworn motion to dismiss was legally sufficient).
Applying Blanco to this case, it is clear that the State's traverse was legally sufficient. Therefore the trial court properly denied the defendant's sworn motion to dismiss count I of the information.
We note that the Fourth District Court of Appeal has decided this issue contrary to Blanco and Branciforte in State v. Kalegeropoulas, 735 So.2d 507 (Fla. 4th DCA), review granted, 749 So.2d 504 (Fla. 1999). However, we find no principled reason to recede from this court's established and logical precedent. Further, we disagree with the contrary analysis in Kalegeropoulas.
In conclusion, criminal court cases are not tried on the pleadings and Florida Rule of Criminal Procedure 3.190(d) does not provide the exclusive means whereby a trial court may deny a motion to dismiss. In this case, where the state submitted a sworn pleading attesting that there exist additional material facts, it is improper for a trial court to grant a defendant's motion to dismiss. See Fla.R.Crim.P. 3.190(c)(4); Branciforte v. State, 678 So.2d at 426; State v. Blanco, 432 So.2d at 633.
Having established the trial court correctly denied the motion to dismiss applying Blanco, we need not reach the merits of the defendant's substantive argument regarding the sufficiency of the evidence. We certify direct conflict with Kalegeropoulos.
Affirmed; conflict certified.
I agree that under State v. Blanco, 432 So.2d 633 (Fla. 3d DCA 1983), we are required to affirm and to certify direct conflict with State v. Kalegeropoulos, 735 So.2d 507 (Fla. 4th DCA), review granted, 749 So.2d 504 (Fla. 1999). However, as I believe Blanco was wrongly decided, I would recede from Blanco and reach the merits of the defendant's substantive argument regarding the sufficiency of the evidence as to the RICO conviction. Nothing in the record before us contains any support for a finding that bookmaking, by itself, is legally sufficient to establish the essential element of an "enterprise" as required by the RICO statute, or consistent with legislative intent. Based on my personal experience, and involvement with the Florida legislature, in the drafting and preparation of the RICO statute, I feel strongly that such an activity is not sufficient to satisfy the statute.
Because I believe Blanco v. State, 432 So.2d 633 (Fla. 3d DCA 1983), was wrongly decided, I would recede therefrom and reverse.
The defendant's Sworn Motion to Dismiss Count One of the Information and Incorporated Memorandum of Law was a detailed pleading containing forty-three numbered paragraphs. Many of the paragraphs contained the allegedly undisputed facts, others contained legal arguments and still others contained conclusory statements concerning the state's inability to prove its case. In its traverse, the state admitted all paragraphs alleging facts, denied those paragraphs which contained the irrelevant conclusory statements and identified those paragraphs which contained only legal argument and moved the trial court to strike them as inappropriate within the body of a sworn motion to dismiss. In addition, the state included one paragraph which read as follows: "The state submits that there exist additional facts which would establish the required standard of proof."
Although irrelevant to this analysis, the state further clarified that the initial information received by the police came from a confidential source and not an anonymous tipster, and clarified the identity of the circuit judge who signed the search warrant as one other than the one identified by the defendant in his motion.
Florida Rule of Criminal Procedure 3.190(c)(4) reads, in pertinent part, as follows:
[T]he court may at any time entertain a motion to dismiss on any of the following grounds:
(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
Rule 3.190(d) reads as follows:
(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 shall be deemed 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.
(Emphasis added). The "specificity" requirement of the rule has been held not to require the state to specifically allege facts which contradict the allegations contained in the motion. In State v. Wall, 445 So.2d 646, 649 (Fla. 2d DCA 1984), the Court stated:
Contrary to [appellant's] belief, Rule 3.190(c)(4) does not require that a state's sworn traverse present by testimony or evidence specific facts which negate the material factual assertion(s) in a Rule 3.190(c)(4) motion to dismiss. The sworn traverse need only specifically apprise the trial court of the material factual allegation(s) in the motion to dismiss which the state is denying.
(emphasis in original) (citations omitted). See also State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA 1977); State v. News-Press Publ'g Co., 338 So.2d 1313, 1318 (Fla. 2d DCA 1976). Thus, denials which simply "deny" particular factual allegations in a sworn motion to dismiss have been held to be sufficient under the rule.
In Wall, the state responded to the factual allegations in the sworn motion to dismiss with specific denials of the facts alleged in specific paragraphs of the motion. There is no doubt that the cases cited above hold that such denials of the allegedly material, undisputed facts are legally sufficient to require the automatic denial of the motion. The question presented in this case, however, is whether a state traverse which admits the facts claimed by the sworn motion to dismiss to represent all of the material undisputed facts in the case, but which generally asserts that "there exist additional facts which would establish the required standard of proof," is sufficient, without a recitation of the specific, additional facts available to the state, to require automatic denial of the motion.
This Court addressed this specific question in Blanco, there, the state filed a traverse which stated the following:
The state specifically denies that the material facts as presented in the Defendant's Sworn Motion to Dismiss are the only facts upon which the state would rely during the state's case in chief.
Id. at 634. The trial court dismissed the information and this Court reversed, saying:
It follows, given this traverse, that the trial court did not have before it all the material undisputed facts in the case and, accordingly, had no basis to conclude, as it did, that the material undisputed facts of the case did not establish a prima facie case of guilt against the defendant.
Id. See also Branciforte v. State, 678 So.2d 426 (Fla. 2d DCA 1996). The state relied on these two cases in the trial court.
The Fourth District Court of Appeal has recently addressed this issue in State v. Kalogeropoulos, 735 So.2d 507 (Fla. 4th DCA), review granted, 749 So.2d 504 (Fla. 1999), and decided it contrary to Blanco and Branciforte, certifying direct conflict with those decisions. For the reasons which follow, I agree with our sister court that Blanco was wrongly decided and that this Court should recede therefrom.
The Committee Notes to Rule 3.190(c) set forth the intended purpose of the rule:
Primarily, this procedure will permit a pretrial determination of the law of the case when the facts are not in dispute. In a sense, this is somewhat similar to summary judgment proceedings in civil cases, but a dismissal under this rule is not a bar to subsequent prosecution.
The rule therefore provides a means for trial judges to make legal determinations addressing the sufficiency of the evidence in those cases where all material facts are undisputed. These pretrial determinations can avoid the need for a full-blown trial in such cases and the expense and inconvenience that accompanies them. This is exactly what a motion for summary judgment can accomplish in a civil case.
Because a prosecutor's sworn traverse denying that certain facts alleged in the motion are true is enough to require the automatic denial of the motion, it does not follow that the same prosecutor's sworn assurance that there are additional material facts which satisfy the applicable standard of proof is sufficient to accomplish the same result. A prosecutor's denial of a particular set of facts as untrue or inaccurate requires only an objective assessment on his or her part of whether the state has any evidence, regardless of the credibility or weight of that evidence, which disputes the alleged fact. On the other hand, the very broad statement that there are other material facts which will serve to establish a prima facie case of guilt requires a subjective assessment of the materiality of those facts. The materiality of the facts is properly the subject of a judicial determination, not one made by the state's advocate. In State v. Martinez, 502 So.2d 74 (Fla. 3d DCA 1987), this Court affirmed the lower court's order dismissing the Information. The Court first found that the material facts set forth in the defendant's sworn motion to dismiss did not constitute a prima facie case of culpable negligence manslaughter. The state had filed a traverse which, rather than simply saying there were additional facts, specifically alleged the additional facts the state was relying upon. This Court went on to say:
[E]ven if the additional material facts as alleged in the state's traverse are also considered, as urged, the state still does not have a prima facie of culpable negligence manslaughter under Section 782.07, Florida Statutes (1985).
Id. Martinez presents the classic example of why the ultimate determination on the issue of materiality must be made by an impartial judge and not by the prosecutor. Clearly, the prosecutor in Martinez believed, no doubt in good faith, that the facts available to the state were sufficient to prove the crimes charged. Equally clear was this Court's conclusion to the contrary. To accept a prosecutor's general statement that there are additional facts which are legally sufficient to make out a prima facie case of guilt, without any specific factual allegation(s) whatsoever, is tantamount to accepting a traverse wherein the prosecutor's sole response is "trust me, I have enough." This is not what the rule contemplates.
As concerns motions to dismiss filed pursuant to Rule 3.190(c)(4), the law is clear that "once a sufficient motion is filed including factual allegations constituting a valid defense or negating an essential element of the offense charged, the burden of persuasion shifts to the state." State v. Crafton, 575 So.2d 777, 777 (Fla. 5th DCA 1991); see also Osby v. State, 630 So.2d 657 (Fla. 5th DCA 1994); State v. Purvis, 560 So.2d 1296 (Fla. 5th DCA 1990); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). In this case, the facts alleged in the defendant's sworn motion to dismiss negated the existence of a prima facie case as to count one of the Information. Accordingly, the burden of persuasion shifted to the state to establish that there were facts sufficient to constitute a prima facie case of the defendant's guilt as to count one. The general allegation that there are additional facts which satisfy the state's burden of proof fails to fulfill that burden.
I would reject the state's argument and conclude that where the state admits the facts which a sworn motion to dismiss alleges are undisputed but takes the position that there are additional facts which make out a prima facie case of the defendant's guilt, the additional facts must be specifically set forth in the traverse, so that they can be evaluated by the trial judge.
In light of my disposition of the state's argument, I conclude that the trial judge correctly treated the state's traverse as a demurrer. However, I further conclude that the motion to dismiss was meritorious and should have been granted.
Defendant's argument before this Court is simply that the undisputed facts in this case fail to establish the existence of an "enterprise," an essential element of the offense charged in count one of the Information, conspiracy to commit RICO. Section 895.02(3), Florida Statutes (1995), defines enterprise as follows:
"Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities. A criminal street gang, as defined in Sec. 874.03, constitutes an enterprise.
In Boyd v. State, 578 So.2d 718 (Fla. 3d DCA 1991), this Court, relying on federal case law interpreting the federal RICO statute, specifically explained the "enterprise" requirement as containing the following three elements:
See United States v. Turkette, 452 U.S. 576 (1981);United States v. Riccobene, 709 F.2d 214 (3d Cir. 1983).
[T]he first element, ongoing organization, refers to the superstructure or framework of the association. The prosecution must show that the group has an identifiable decision-making structure and a mechanism for controlling and directing the group on an ongoing, rather than an ad hoc, basis.
* * *
[The second element requires] that the various associates function as a continuous unit. This element requires the prosecution to show some degree of temporal continuity. Although the continuity requirement is generally the focus of the pattern element of the crime of RICO, continuity is also a requirement of an enterprise.
* * *
The final element required to establish an enterprise is that the organization have an existence separate and apart from the pattern of racketeering activity in which it engages. If there is nothing linking the members of the association to one another except the commission of the predicate criminal acts, then there is no enterprise.
Id. at 721-22 (citations omitted). These onerous requirements clearly establish that "RICO was not intended to subject ordinary sporadic criminal activity to heightened punishment." Id. at 721. The undisputed facts set forth in defendant's sworn motion to dismiss do not establish a prima facie case of conspiracy to commit RICO. Although I do not believe that any of the elements of the "enterprise" are satisfied, the most significant failure of the state's case is the absence of any evidence establishing that the "organization [had] an existence separate from the pattern of racketeering activity in which it engage[d]." Id.
In conclusion, I would recede from this Court's decision inBlanco, reverse the lower court's denial of the defendant's sworn motion to dismiss, and remand with instructions to grant the motion. I respectfully dissent.