Defensive Motions That May Be Filed

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  • In General

A defensive motion can be a highly effective tool in having an indictment or information dismissed, having illegally seized evidence suppressed, or in keeping highly prejudicial evidence from being introduced during trial. The most commonly used defensive motions in Florida are motions to dismiss, motions to suppress, and motions in limine. Where appropriate, one or more defensive motions can be filed. If the motion is dispositive, and it is granted, the State is precluded from proceeding with prosecution (unless, of course, the adverse ruling is appealed successfully). Where the motion is not dispositive, the granting of the motion may nonetheless give an accused person leverage to negotiate a more favorable disposition.

  • Motions to Dismiss

Motions to dismiss the indictment or information are usually dispositive and are typically filed where there has been a violation of the accused person's right to a speedy trial (either "rule" speedy trial or Constitutional speedy trial), the statute of limitations has run, where the defendant was previously placed in jeopardy for the same offense, or where the defendant was "objectively" entrapped by law enforcement during the course of the investigation.

A "C4" motion is a reference to Florida Rule of Criminal Procedure 3.190(c)(4) which provides for the filing of a motion to dismiss where "there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant". The (c)(4) motion is alot like a summary judgment motion in civil cases. To be effective, (c)(4) motions should be carefully drafted, and be as factually intensive as possible. If there is any material factual dispute raised by the state, in a responsive pleading referred to as a "traverse", then the motion will be denied. Motions to dismiss under 3.190(c)(4) must be sworn or attested to by the accused person and any misrepresentations may subject that person to a subsequent prosecution for perjury. These types of dismissal motions are not commonly filed and are usually met with limited success. The full text of Florida Rule of Criminal Procedure 3.190 is set forth below.

  • Motions to Suppress

Motions to suppress are filed prior to trial (typically) and seek to have the court enter an order that certain evidence be "excluded". When evidence is excluded, or suppressed, it is not presented to the jury during the state's case-in-chief. This type of motion is appropriate where evidence was obtained in violation of the accused person's fourth amendment right against unlawful search seizure, fifth amendment right against self-incrimination, or sixth amendment right to counsel. Fourth amendment violations typically involve some form of tangible evidence that was obtained from the accused, such as drugs or other contraband, without a search warrant and without a valid exception to the warrant requirement. It may also include the contents of conversations where the speaker had a legitimate expectation of privacy in what was being said. Fifth and Sixth Amendment violations typically involve statements, by the accused, that were obtained in violation of the person's Miranda Rights. A person has the right not to incriminate himself or herself and has the right to counsel during questioning (in most instances). Where a violation has occurred, a motion to suppress the statements in question is the appropriate remedy.

  • Motions in Limine

Motions in limine are usually filed once the case has been set for trial and are used to obtain a ruling from the court that they jury cannot hear certain types of evidence. From the defense perspective, motions in limine are filed to prevent the admission, at trial, of evidence that is arguably irrelevant, prejudicial, or violates some other provision of the Florida evidence code to the accused person's detriment. The granting of a motion in limine can really dilute the strength of the state's case and in some instances, can gut it completely.

  • Florida Rule of Criminal Procedure 3.190

Florida Rule of Criminal Procedure 3.190 sets forth the rules that apply to the filing of pre-trial motions in criminal cases, including motions to dismiss, motions to suppress tangible evidence, and motions to suppress unlawfully obtained statements from the accused. While some of the sections below don't apply to defensive motions ((f), (i) and (j)), the full text is provided.

(a) In General. Every pretrial motion and pleading in response to a motion shall be in writing and signed by the party making the motion or the attorney for the party. This requirement may be waived by the court for good cause shown. Each motion or pleading shall state the ground or grounds on which it is based. A copy shall be served on the adverse party. A certificate of service must accompany the filing of any pleading.

(b) Motion to Dismiss; Grounds. All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall be made as to matters of form, substance, former acquittal, former jeopardy, or any other defense.

(c) Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time herein-above provided shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds: (1) the defendant has been charged with an offense for which the defendant has been pardoned; (2) the defendant is charged with an offense for which the defendant previously has been placed in jeopardy; (3) the defendant is charged with an offense for which the defendant has previously been granted immunity; (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 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.

(e) Effect of Sustaining a Motion to Dismiss. If the motion to dismiss is sustained, the court may order that the defendant be held in custody or admitted to bail for a reasonable specified time pending the filing of a new indictment or information. If a new indictment or information is not filed within the time specified in the order, or within such additional time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom, unless some other charge justifies a continuation in custody. If the defendant has been released on bail, the defendant and the sureties shall be exonerated; if money or bonds have been deposited as bail, the money or bonds shall be refunded.

(f) Motion for Continuance. (1) Definition. A continuance within the meaning of this rule is the postponement of a cause for any period of time. (2) Cause. On motion of the state or a defendant or on its own motion, the court may grant a continuance in its discretion for good cause shown. (3) Time for filing. A motion for continuance may be made only before or at the time the case is set for trial, unless good cause for failure to so apply is shown or that the ground for the motion arose after the cause was set for trial. (4) Certificate of Good Faith. A motion for continuance shall be accompanied by a certificate of the movant's counsel that the motion is made in good faith. (5) Affidavits. The party applying for a continuance may file affidavits in support of the motion, and the adverse party may file counter-affidavits in opposition of the motion.

(g) Motion to Suppress Evidence in Unlawful Search. (1) Grounds. A defendant aggrieved by an unlawful search and seizure may move to suppress anything so obtained for use as evidence because: (A) the property was illegally seized without a warrant; (B) the warrant is insufficient on its face; (C) the property seized is not the property described in the warrant; (D) there was no probable cause for believing existence of the grounds on which the warrant was issued; or (E) the warrant was illegally executed. (2) Contents of the Motion. Every motion to suppress evidence shall state clearly the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based. (3) Hearing. Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. If the court hears the motion on its merits, the defendant shall present evidence supporting the defendant's position and the state may offer rebuttal evidence. (4) Time for Filing. The motion to suppress shall be made before trial unless opportunity therefore did not exist or the defendant was not aware of the grounds for the motion, but the court may entertain the motion or an appropriate objection at the trial.

(h) Motion to Suppress a Confession or Admission Illegally Obtained. (1) Grounds. On motion of the defendant or on its own motion, the court shall suppress any confession or admission obtained illegally from the defendant. (2) Contents of Motion. Every motion made by a defendant to suppress a confession or admission shall identify with particularity any statement sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based. (3) Time for Filing. The motion to suppress shall be made be before trial unless opportunity therefore did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial. (4) Hearing. The court shall receive evidence on any issue of fact necessary to be decided to rule on the motion.

(i) Motion to Take Deposition to Perpetuate Testimony. (1) After the filing of an indictment or information on which a defendant is to be tried, the defendant or the state may apply for an order to perpetuate testimony. The application shall be verified or supported by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be preventing from attending a trial or hearing, that the witness's testimony is material, and that it is necessary to take the deposition to prevent a failure of justice. The court shall order a commission to be issued to take the deposition of the witnesses to be used in the trial and that any nonprivielged designated books, papers, documents, or tangible objects be produced at the same time and place. If the application is made within 10 days before the trial date, the court may deny the application. (2) If the defendant or the state desires to perpetuate the testimony of a witness living in or out of the state whose testimony is material and necessary to the case, the same proceedings shall be followed as provided in subdivision (i)(1), but the testimony of the witness may be taken before an initial court reporter, transcribed by the reporter, and filed in the trial court. (3) If the deposition is taken on the application of the state, the defendant and the defendant's attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep the defendant in the presence of the witness during the examination. A defendant not in custody may be present at the examination, but the failure to appear after notice and tender of expenses shall constitute a waiver of the right to be present. The state shall pay to the defendant's attorney and to a defendant not in custody the expenses of travel and of subsistence for attendance at the examination. The state shall made available to the defendant for examination and use at the deposition any statement of the witness being deposed that is in the possession of the state and that the state would be required to make available to the defendant if the witness were testifying at trial. (4) The application and order to issue the commission may be made either in term time or in vacation. The commission shall be issued at a time to be fixed by the court. (5) Except as otherwise provided, the rules governing the taking and filing of oral depositions, the objections thereto, the issuing, execution, and return of the commission, and the opening of the depositions in civil actions shall apply in criminal cases. (6) No depositions hall be used or read into evidence when the attendance of the witness can be procured. If the court determines that any witness whose deposition has been taken is absent because of procurement, inducement, or threats of any person on behalf of the state or of the defendant or of any person on the defendant's behalf, the deposition shall not be read in evidence on behalf of the defendant.

(j) Motion to Expedite. On motion by the state, the court, in the exercise of its discretion, shall take into consideration the dictates of sections 825.106 and 918.0155, Florida Statutes (1995).

  • Resources

The following is a list of links to outside sources and to some of our prior blog posts on topics related to motions to dismiss, motions to suppress and/or motions in limine.

  • Links
  1. Findlaw: Search and Seizure
  2. Findlaw: The Right to Counsel
  3. Florida Statutes, Chapter 933
  • Blog Posts
  1. They Never Read Me My Rights - Can My Charge Be Dismissed?
  2. What is the Statute of Limitations Anyway?
  3. This is Entrapment!! (Right??)
  4. They Searched My Car - Can They Do That??
  5. Do I Need An Attorney?
  6. The Three Levels of Police/Citizen Encounters
  7. Florida's Williams Rule: What Is It & What Does It Mean For My Criminal Case?
  8. What is a Stand Your Ground Immunity Motion?
  9. Search and Seizure in Florida: An Overview
  • The Bottom Line

Effective motion drafting and litigation requires a thorough understanding of Florida criminal law, the Florida evidence code, and rules of procedure. Attorney Donald J. Kilfin has practiced in St. Petersburg and the surrounding areas for nearly fifteen years, including six years as a Pinellas county state prosecutor. He has conducted motions hearings on behalf of the state of Florida and as a criminal defense attorney on behalf of his clients. Mr. Kilfin is very familiar with the process. If you have a criminal charge pending in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, or Bradenton, contact The Kilfin Law Firm, P.C. to discuss the circumstances of your case.