State v. Charles Seward , 2016 Fla. App. LEXIS 5430 ( 2016 )

5IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D15-3568
CHARLES SEWARD,
Appellee.
________________________________/
Opinion filed April 8, 2016
Appeal from the Circuit Court
for Orange County,
Jenifer M. Davis, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellant.
James S. Purdy, Public Defender, and
Nicole J. Martingano, Assistant Public
Defender, Daytona Beach, for Appellee.
EVANDER, J.
The State appeals the trial court’s order granting Charles Seward’s motion to
dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4).1 It argues that
1
Rule 3.190(c)(4) provides that a party may move to dismiss an indictment or
information where “[t]here are no material disputed facts and the undisputed facts do
not establish a prima facie case of guilt against the defendant.”
its traverse specifically disputed the material facts asserted in Seward’s motion and was
otherwise legally sufficient to withstand the motion. We agree, and accordingly,
reverse.
Seward was charged with driving a motor vehicle upon the highways of the State
of Florida while his driver’s license was revoked as a habitual traffic offender in violation
of section 322.34(5), Florida Statutes (2014). He subsequently filed a motion to
dismiss, averring that at the time of his arrest he was “allegedly riding a bicycle.” The
motion further asserted that Seward was not required to have a valid driver’s license
because, although an individual is prohibited from driving a motor vehicle with a revoked
driver’s license, section 322.01(27), Florida Statutes (2014), excluded motorized
bicycles from the definition of “motor vehicle.”
The State filed a traverse specifically denying that Seward was riding a bicycle.
The traverse additionally recited that in his sworn statement, Deputy King alleged that
“the Defendant was on a Gas Powered Bicycle” and “was traveling under Gas Power at
a speed in excess of 30 M.P.H.” In the legal argument that was included in the
traverse, the State correctly observed that the exclusion of motorized bicycles from the
definition of “motor vehicle” under section 322.01(27)2 applied only if the motorized
bicycle fell within the definition of motorized bicycle set forth in section 316.003, Florida
Statutes (2014).
2
“Motor vehicle” is defined in section 322.01(27) as:
[A]ny self-propelled vehicle, including a motor vehicle
combination, not operated upon rails or guideway, excluding
vehicles moved solely by human power, motorized
wheelchairs, and motorized bicycles as defined in [section]
316.003.
2
The State’s traverse set forth the definition of “motorized bicycle,” which is
included within the definition of a “bicycle” found in section 316.003(2), Florida Statutes
(2014):
Bicycle. – Every vehicle propelled solely by human power,
and every motorized bicycle propelled by a combination of
human power and an electric helper motor capable of
propelling the vehicle at a speed of not more than 20 miles
per hour on level ground upon which any person may ride,
having two tandem wheels, and including any device
generally recognized as a bicycle though equipped with two
front or two rear wheels. . . .
§ 316.003(2), Fla Stat. (2014) (emphasis added). The State argued that the officer’s
sworn statement that Seward was driving a gas-powered bicycle in excess of thirty
miles per hour precluded Seward’s reliance on the “motorized bicycle” exclusion.
Our review of the trial court’s order is de novo. State v. Taylor, 16 So. 3d 997,
999 (Fla. 5th DCA 2009). A rule 3.190(c)(4) motion to dismiss must be denied by the
trial court if the State files a traverse that specifically denies under oath a material fact
alleged in the motion. Id. Furthermore, the State is not required to oppose a
defendant’s motion to dismiss with an affidavit in order to avoid dismissal. Rather, it is
sufficient if the State’s traverse specifically denies a material fact alleged in the
defendant’s motion, or asserts additional material facts that establish a prima facie
case. Id.
Here, the State’s traverse specifically denied Seward’s averment that he was
riding a bicycle. Additionally, the State’s traverse asserted additional material facts, to
wit: that Seward was on a gas-powered bicycle that was traveling in excess of thirty
miles per hour. These additional facts, if proved at trial, would remove Seward’s
“bicycle” from the motorized bicycle exclusion to the definition of a motor vehicle. See
3
Inman v. State, 916 So. 2d 59 (Fla. 2d DCA 2005) (holding that two-wheeled vehicle
powered by two twelve-volt rechargeable batteries that lacked an additional or alternate
source of power such as bicycle-like pedals that would allow for user-generated
propulsion did not fall within the definition of motorized bicycle, and thus, was a motor
vehicle; defendant’s conviction for driving while license suspended affirmed).
Seward also argues that the State’s traverse included a defective jurat. In
support of his claim, Seward relies on State v. Zipfel, 537 So. 2d 1099 (Fla. 3d DCA
1989), where our sister court held that a jurat stating that the allegations in the arrest
affidavit were “true and correct to the best of [the assistant state attorney’s] knowledge
and belief” was insufficient. 537 So. 2d at 1099 n.1. However, in the instant case, the
jurat to the State’s traverse recited that the information set forth in the traverse was
“based on evidence and sworn testimony received by the Office of the State Attorney in
the investigation of this case.” This type of jurat has been found to be sufficient. See,
e.g., State v. Terma, 997 So. 2d 1174, 1178 (Fla. 3d DCA 2008); see also Zipfel, 537
So. 2d at 1099 (“We believe it would be appropriate for such an oath to be couched in
such language as that required by the rule for the execution of an information in the first
instance.”). Because the State’s traverse was legally sufficient and specifically disputed
the material facts asserted in Seward’s motion, we conclude that the trial court erred in
dismissing the information filed against Seward.
REVERSED and REMANDED.
ORFINGER and COHEN, JJ., concur.
4