# Velasquez v. State

> District Court of Appeal of Florida · February 2, 2009 · 9 So. 3d 22

URL: https://www.frixlaw.com/law-library/cases/9883793

## Case

- **Full name:** Ricardo VELASQUEZ, Petitioner, v. STATE of Florida, Respondent
- **Court:** District Court of Appeal of Florida
- **Decided:** February 2, 2009
- **Citations:** 9 So. 3d 22; 2009 Fla. App. LEXIS 711; 2009 WL 223109
- **Precedential status:** Published
- **Opinion:** Concurrence by Polen
- **Judges:** May
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Dennis v. State, 35 Fla. L. Weekly Supp. 731 (2010).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9883793

## How later opinions describe it (automated extraction)

- holding that a motion to dismiss based on section 776.032 immunity is governed by rule 3.190(c)(4) and should be denied if factual disputes exist; certifying conflict with Peterson
- explaining that trial court had properly denied a similar motion because, under Rule 3.190(c)(4), a motion to dismiss has to be denied when the facts are in dispute

## Opinion text

POLEN, J.,
concurring specially.
I agree with the result reached by the majority and most of the majority’s analy *25 sis. I disagree, however, as to the rejection of the procedure approved by the First District Court of Appeal in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). While I question whether a trial court could properly determine factual disputes solely on the strength of one eye-witness deposition and argument of counsel, as the court did in Peterson , there was a full evidentiary hearing in this case. Nonetheless, I think the first district was correct in holding that the trial judge must make the initial decision whether the defendant has met her or his burden of establishing the right to immunity, and hence dismissal, under section 776.032, Florida Statutes. This would be so whether or not the state has filed a “traverse” as provided in Florida Rule of Criminal Procedure 3.190(d). In my view, a traverse would not automatically send the case to the jury. And if a trial court were to find entitlement to section 776.032 immunity and dismiss the charges, such a ruling would then be subject to immediate appellate review. I would not certify conflict with Peterson .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9883793. Public record. Not legal advice.