Rule 3.190. PRETRIAL MOTIONS

RULE 3.190. PRETRIAL MOTIONS

(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

other 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 relate 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 provided herein, shall be considered waived.

However, the court may at any time entertain a motion to dismiss

on any of the following grounds:

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(1)

The defendant is 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 previously has 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.

for which

the defendant previously has been placed in jeopardy.

(3)

The defendant is charged with an offense for which

the defendant previously has 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 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.

(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,

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.

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time as the court may allow for

good cause shown, the defendant, if in custody, shall be discharged,

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.

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(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 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 to 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 the

existence of the grounds on which the warrant was issued; or

(E)

the warrant was illegally executed.

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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 the

existence of the grounds on which the warrant was issued; or

(E)

the warrant was illegally executed.

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(2)

Contents of 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 therefor 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 before trial unless opportunity therefor 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.

ement 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 before trial unless opportunity therefor 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.

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(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 prevented 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

nonprivileged 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 official court

reporter, transcribed by the reporter, and filed in the trial court.

y 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 official 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 subsistence for attendance at

the examination. The state shall make 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.

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(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.

der 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 deposition shall be used or read into evidence

when the attendance of the witness can be procured. If the court

determines that any person 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).

Committee Notes

1968 Adoption. (a) New; devised by committee.

(b)

Substantially the same as section 909.02, Florida

Statutes, except changes name of “motion to quash” to “motion to

dismiss.” This conforms to the terminology of the Federal Rules of

Criminal Procedure. The statute authorizing the state to appeal

from certain orders, section 924.07, Florida Statutes, should be

amended by substituting the words “motion to dismiss” for “motion

to quash.”

mmittee.

(b)

Substantially the same as section 909.02, Florida

Statutes, except changes name of “motion to quash” to “motion to

dismiss.” This conforms to the terminology of the Federal Rules of

Criminal Procedure. The statute authorizing the state to appeal

from certain orders, section 924.07, Florida Statutes, should be

amended by substituting the words “motion to dismiss” for “motion

to quash.”

(c)

Combines the substance of sections 909.01 and 909.06,

Florida Statutes. Subdivision (4) affords a new remedy to an

accused. Although there is now a conclusive presumption of

probable cause once an indictment or information is filed (see

Sullivan v. State, 49 So. 2d 794 (Fla. 1951)), it is felt that this rule is

necessary. Primarily, this procedure will permit a pretrial

determination of the law of the case when the facts are not in

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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 a subsequent prosecution.

(d)

New; based on Marks v. State, 115 Fla. 497, 155 So. 727

(1934), and what is generally regarded as the better practice.

Hearing provision based on federal rule 41(e).

(e)

Combines federal rule 12(b)(5) and section 909.05,

Florida Statutes. With reference to the maximum time that a

defendant will be held in custody or on bail pending the filing of a

new indictment or information, the trial court is given discretion in

setting such time as to both the indictment and information. This

proposal differs from section 909.05, Florida Statutes, with

reference to the filing of a new indictment in that the statute

requires that the new indictment be found by the same grand jury

or the next grand jury having the authority to inquire into the

offense

a

new indictment or information, the trial court is given discretion in

setting such time as to both the indictment and information. This

proposal differs from section 909.05, Florida Statutes, with

reference to the filing of a new indictment in that the statute

requires that the new indictment be found by the same grand jury

or the next grand jury having the authority to inquire into the

offense. If the supreme court has the authority to deviate from this

statutory provision by court rule, it seems that the trial court

should be granted the same discretion with reference to the

indictment that it is granted concerning the information. The

statute is harsh in that under its provisions a person can be in

custody or on bail for what may be an unreasonable length of time

before a grand jury is required to return an indictment in order that

the custody or bail be continued.

(g)(1) This subdivision is almost the same as section 916.02(1),

Florida Statutes.

(g)(2) This subdivision is almost the same as section 916.02(2),

Florida Statutes.

(g)(3) This subdivision is almost the same as section 916.03,

Florida Statutes.

(g)(4) This subdivision rewords a portion of section 916.04,

Florida Statutes.

(g)(5) This subdivision rewords section 916.07, Florida

Statutes.

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(h)

Same as federal rule 41(e) as to the points covered.

(i)

This rule is based on 38-144-11 of the Illinois Code of

Criminal Procedure and federal rule 41(e).

(j)

This subdivision rewords and adds to federal rule 14. It

covers the subject matter of section 918.02, Florida Statutes.

(k)

This rule is almost the same as federal rule 13, with

provision added for trial by affidavit.

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(h)

Same as federal rule 41(e) as to the points covered.

(i)

This rule is based on 38-144-11 of the Illinois Code of

Criminal Procedure and federal rule 41(e).

(j)

This subdivision rewords and adds to federal rule 14. It

covers the subject matter of section 918.02, Florida Statutes.

(k)

This rule is almost the same as federal rule 13, with

provision added for trial by affidavit.

(l)

Substantially same as section 916.06, Florida Statutes,

with these exceptions: application cannot be made until indictment,

information, or trial affidavit is filed; application must be made at

least 10 days before trial; oral deposition in addition to written

interrogatories is permissible.

1972 Amendment. Subdivision (h) is amended to require the

defendant to specify the factual basis behind the grounds for a

motion to suppress evidence. Subdivision (l) is amended to permit

the state to take depositions under the same conditions that the

defendant can take them. Former subdivisions (j) and (k)

transferred to rules 3.150, 3.151, and 3.152. Subdivisions (l) and

(m) renumbered (j) and (k) respectively. Otherwise, same as prior

rule.

1977 Amendment. This amendment resolves any ambiguity

in the rule as to whether the state must file a general or a specific

traverse to defeat a motion to dismiss filed under the authority of

rule 3.190(c)(4).

See State v. Kemp, 305 So. 2d 833 (Fla. 3d DCA 1974).

The amendment clearly now requires a specific traverse to

specific material fact or facts.

1992 Amendment. The amendments, in addition to gender

neutralizing the wording of the rule, make a minor grammatical

change by substituting the word “upon” for “on” in several places.

The amendments also delete language from subdivision (a) to

eliminate from the rule any reference as to when pretrial motions

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are to be served on the adverse party

Amendment. The amendments, in addition to gender

neutralizing the wording of the rule, make a minor grammatical

change by substituting the word “upon” for “on” in several places.

The amendments also delete language from subdivision (a) to

eliminate from the rule any reference as to when pretrial motions

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are to be served on the adverse party. Because rule 3.030 addresses

the service of pleadings and papers, such language was removed to

avoid confusion and reduce redundancy in the rules.

2002 Amendment. If the trial court exercises its discretion to

consider the motion to suppress during trial, the court may

withhold ruling on the merits of the motion, and motion for a

judgment of acquittal, and allow the case to be submitted to the

jury. If the defendant is acquitted, no further proceedings regarding

the motion to suppress or motion for a judgment of acquittal would

be necessary. However, if the jury finds the defendant guilty of the

crime charged, the trial court could then consider the motion to

suppress post-trial in conjunction with the defendant’s renewed

motion for a judgment of acquittal or motion for new trial.