Motion to Dismiss

When most people come into see a Sanford Criminal Defense Lawyer they often ask, how can I get these charges dropped. There is more than one way to skin the proverbial cat; that said, a C4 Motion to Dismiss is a powerful tool in a Criminal Lawyer’s tool bag. Florida Rule of Criminal Procedure 3.190(c)(4) referred colloquially in criminal defense circles as a “C4 Motion” allows criminal defense attorneys the ability to file a motion with the court requesting the Judge dismiss all charges against the Defendant due to the inability for the State of Florida through the Office of the State Attorney to prove the prima facie “on its face” elements of the crime. If a Motion to Dismiss is filed on factual grounds the Prosecutor then has the ability to respond, in what is called a traverse. If the State does not traverse the Court will usually deem the inaction as agreement with what is stated in the Motion and may at that time granted the Motion to Dismiss. If the state provides a traverse and disagrees with the facts of the Motion to Dismiss the Judge may deny the Motion. In simple terms, if the elements of a crime are A, B, and C, and both the Defense and State agree that only A and B, are present than the Court should dismiss the charges. Please read below a Motion to Dismiss that was filed by our Office in relation to the gun crime, improper exhibition of a firearm:

IN THE COUNTY COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

IN AND FOR SEMINOLE COUNTY, FLORIDA

STATE OF FLORIDA                             CASE NUMBER: 2012-MM -00xxxx-
A
       Plaintiff,
vs.
XXXXX,
       Defendant.
______________________/

SWORN MOTION TO DISMISS

                   COMES NOW, Ryan N. Yadav, Esquire, of The Law Office of Ryan N. Yadav, LLC, and pursuant to Florida Rules of Criminal Procedure 3.190(c)(4), respectfully moves this Court for the entry of an order dismissing the criminal charge filed against the Defendant in this cause, and as grounds therefore, the Defendant would show the Court there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the Defendant. The facts and law upon which this motion is based are as follows:

FACTUAL BASIS

The Defendant, XXXXX, was in lawful possession of a firearm on September 5, 2011 in the backyard of his residence 123 XYZ Avenue, Sanford, Seminole County.

A neighbor, XXXXX, saw the Defendant on the Defendant’s back porch with a “pistol” in his hands.

Mr. XXXXX allegedly returned inside his own residence and later heard two (2) gunshots.

Mr. XXXXXX called 911 after hearing the alleged gun shots.

The Defendant later admitted “post-Miranda” to law enforcement that he fired two (2) times into the ground. 

The Defendant possesses a Florida Concealed Weapons Permit.

LEGAL ANALYSIS

Florida Statute 790.10 defines the crime of improper exhibition of dangerous weapons or firearms as any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree.

Florida Standard Jury Instruction 10.5 provides the state must prove beyond a reasonable doubt that (1) the Defendant had or carried a firearm, (2) exhibited the firearm in a rude, careless, or threatening manner, and (3) he or she did so in the presence of one or more persons.

No person witnessed the Defendant exhibit the firearm in a rude, careless, or threatening manner.

XXXXXX witnessed the Defendant with a firearm and later heard two (2) gunshots, XXXXX nor any other person witnessed the Defendant exhibit the firearm in a rude careless, or threatening manner.

WHEREFORE, based upon the foregoing, the Defendant respectfully prays that this Court will enter an order dismissing the criminal charges pending against the him in this cause.