Motion to Dismiss
COMES NOW the Defendant, pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, respectfully moves this Honorable Court to dismiss the charges filed herein, and in support thereof states as follows:
1. The Client is charged by Information with Possession of a Firearm by a Convicted Felon in violation of § 790.23, Fla. Stat., and Aggravated Assault, in violation of §§ 784.021(1)(a) and 741.28 and 775.087(2)(a)2, Fla. Stat., which allegedly occurred on August 1, 2016.
2. On August 1, J. W. called 911 to report that a child ran across the street to him, saying that his dad shot his mom. 911 Recording.
3. During his deposition, J. W. stated he was standing outside when the child came running across the street, screaming and hollering, and stating, “Daddy shot Mommy.”
4. J. W. stated he immediately took the child around behind his Chevy Tahoe, so that they would both be protected in case of additional gun shots.
5. During the call, J. W. told the 911 operator that he observed the suspect getting into a car and leaving. 911 Recording.
6. When the operator asked what the suspect was wearing, J. W. responded, “I didn’t look that close, I was more worried about trying to get the kid out of the line of fire.”
7. J. W. told the 911 operator he spoke to “the lady” and “apparently the gun did get discharged but nobody got shot.” 911 Recording.
8. During his deposition, J. W. identified “the lady” as his neighbor, D. A., and the suspect as his neighbor, the Client.
9. J. W. testified he was familiar with their two children, including the child who told him his dad shot his mom.
10. J. W. testified that while he was talking to the child, the Client came outside and hollered for the child. J. W. leaned out from behind his vehicle and told him the child was with him.
11. J. W. testified he was not paying much attention to the Client, as he was worried about the child.
12. He testified the Client went inside his home, and then came back outside, got into his vehicle, and departed the area.
13. As the Client was speaking with the 911 operator, he stated: “Yeah, right across the street, he’s getting in a car and leaving right now.”
14. Officer B. of the Jacksonville Sheriff’s Office testified that when he first arrived at the home of the Client and D. A., she reported that no gun shots had been fired in her home, but that the Client and she had argued, and he left.
15. Officer B. testified that D. A. seemed believable.
16. Officer B. stated he walked across the street and spoke with J. W., who told him he heard a gunshot. Officer B. then returned to the Client’s/D. A. home.
17. D. A. told Officer B. a second time that no shots were fired.
18. Officer K. did not observe any injuries to D. A., and she was very calm.
19. Officer B. stated that the second time he spoke with D. A. her son was with her. He stated he asked the child to come outside, and he spoke with the child about 15 -20 feet away from D. A.
20. Officer B. testified that the boy told him: “Daddy shot a gun.”
21. Officer B. testified he later learned that the boy did not actually see his father shoot a gun, because he was in another room.
22. Officer B. testified he went back to D. A. a third time, and asked if the Client had fired a gun. He testified that this time D. A. told him the Client and she argued because she wanted to move on, and then he pulled out a gun and pointed it above her, and fired it.
23. Officer B. testified that D. A. stated the Client did not point the gun at her, but pointed it up, and she covered her head.
24. Officer B. testified she described the gun as a black hand gun.
25. Officer B. reported that J. W. stated he saw a hand gun in the Client’s pocket, as he was leaving.
Memorandum of Law
(c)(4) Law – Generally
This Motion is filed pursuant to provisions of Rule 3.190(c)(4), Fla. R. Crim. P., stating that a motion to dismiss may be filed on the grounds that –
there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
The facts, based on the eye witnesses sworn testimony, are undisputed, and application of the law to the undisputed facts shows that the State has not, and cannot, meet its factual burden as to this charge. Accordingly, dismissal of the charge is appropriate.
No Facts Support Charge of Occupying a Condemned Building
Pursuant to Jacksonville Municipal Ordinance § 518.136, it is unlawful to “be physically present in or allow others to be physically present in any building or structure which has been condemned.” (emphasis added). It is not a violation of the ordinance to simply be on the property where a condemned structure is located, as was the case here. Although the home was condemned, L. was not “physically present” in her home, and did not allow others to be “physically present” in her home – or in any building or structure located on the property. Therefore, she was not in violation of the municipal ordinance.
Accordingly, based on the undisputed facts, the State has failed to state a prima facie case as to the elements of occupying a condemned building, and thus the undisputed facts do not establish a prima facie case of guilt against the defendant, making dismissal of the charge appropriate.
WHEREFORE, the Defendant moves the Court to enter an order dismissing the charge of occupying a condemned building filed herein.