Motion to Strike Traverse and For Hearing On Demurrer
The Defendant, by counsel, files this motion to strike the traverse portion of the Traverse and Demurrer filed in the above captioned matter, and requests a hearing on the demurrer portion, and further states as follows below:
1. The defendant has previously filed her motion to dismiss, under Florida Rule of Criminal Procedure 3.190(c)(4).
2. On August 29, the state filed its Traverse and Demurrer, in response to said motion.
3. The basis for this motion, as more fully stated below, is the insufficiency of the Traverse, and the grounds stated below to strike the Traverse, as inadequate in that it fails to properly show the existence of a prima facie case of guilt against the defendant. The state does not dispute the relevant facts underlying the defendant’s motion to dismiss.
4. The gravamen of defendant’s motion to dismiss is that the identification card and other information provided by the defendant, at the time she rented the subject apartment, neither “concerned a fictitious individual,” nor “concerned a real individual whose consent had not been first obtained.” §817.568(9), Fla. Stat. See also Fla. Std. Jury Instr. (Crim.) 20.18.
5. In the traverse portion of the Traverse and Demurrer, the state admits that the defendant rented an apartment in the name M. C. and did not deny that M. C. was the defendant’s “current, lawful, married name.” The sole comment as to this allegation was that the state contended, that based on the defendant’s driver’s license, her name had not been lawfully changed at the time of the rental. This is not a denial as to the allegation in the motion to dismiss, and more importantly, does not refute the inability of the state to prove a prima facie case. First, the allegation in the motion to dismiss was accurate. Additionally, and more significantly, regardless of the status of the defendant’s name change, the information provided, whether accurate or fictitious, did not concern a fictitious individual, or a real individual whose consent had not first been obtained. Thus, regardless of the limited traverse, the state has failed to traverse material facts, which form the basis of the motion to dismiss.
6. Similarly, the state admits that the defendant produced personal identification in the name of M. C., to wit, a military dependent ID. The state’s contention that it “has no information,” as to the validity of that ID, again does not traverse material facts sufficient to defeat the motion to dismiss. In fact, that military ID is a public record, pursuant to § 90.803(a), Fla. Stat., and as a document bearing the seal of the United States, is a self-authenticating document, pursuant to §90.902(1)(a), Fla. Stat. Again, and more significantly, this does not traverse the fact that the defendant’s military ID card did not concern a fictitious person, nor a real person, whose consent had not been obtained. Thus, again, the state has not traversed a material fact sufficient to defeat the defendant’s motion to dismiss.
7. The state’s proffer of the alleged incorrect date of birth and social security number allegedly given by the defendant in the apartment application, accepted as true for purposes of the motion to dismiss, does not transform this into a prima facie case. The proffered facts establish only a part of the first element of the crime – the use of “counterfeit or fictitious personal identification information.” §817.568(9), Fla. Stat. See also Fla. Std. Jury Instr. (Crim.) 20.18. Those facts do not in any way establish the second element necessary for a prima facie case, that the alleged counterfeit or fictitious personal identification information “concerned a fictitious individual,” nor “concerned a real individual whose consent had not been first obtained.” Thus the Traverse does not establish a prima facie case of guilt, and is insufficient.
8. The Traverse does not meet its burden to state specific factual allegations supported by record evidence, and does not show the required “dispute of material fact.” State v. Nunez, 881 So. 2d 658, 660 (Fla. 3d DCA 2004).
9. To be legally sufficient, a Traverse must “specifically dispute material facts …. or add additional material facts that meet the minimal requirements of a prima facie case of guilt.” Id. at 661 (emphasis in original). This evidence must be “provided in a clear and specific fashion.” Id., at 660 (emphasis added). As discussed above, the State here does not proffer specific evidence that the alleged counterfeit or fictitious personal identification information “concerned a fictitious individual,” nor “concerned a real individual whose consent had not been first obtained,” for the simple reason that it cannot. §817.568(9), Fla. Stat.
10. The law is clear that a “Traverse requires more than a did not, did so swearing match.” Nunez, supra at 660, 661 (emphasis added). A denial of allegations in a sworn (c)(4) motion to dismiss must “place material facts before the Court so as to require denial of the motion to dismiss.” State v. Kalogeropoulos, 735 So. 2d 507, 508 (Fla. 4th DCA, 1999), approved by State v. Kalogeropoulos, 758 So. 2d 110 (Fla. 2000). The instant Traverse fails to do so.
11. Here, the State, like the State in Nunez, seems to assume that “so long as it merely disputes the allegations of a Defendant’s Sworn Motion to Dismiss, that this (c)(4) motion must be denied.” Id. at 660-661. The Nunez court disagreed, adding a “Traverse requires more than a did not, did so swearing match.” Id. at 661 (emphasis added). It held the State must have evidence to “specifically dispute material facts … or add additional material facts.” Id. This evidence must be “provided in a clear and specific fashion.” Id., at 660.
12. The State here does not proffer specific evidence – or any evidence – as to the second element of the charged offense.
13. As held in Cashatt v. Florida, 873 So. 2d 430, 437 (Fla. 1st DCA 2004), the traverse must be one which “denies under oath material facts alleged or sets forth additional facts which create a material issue.” The traverse must demonstrate “a material dispute of the ultimate facts.” Id. (emphasis added). Thus, conclusory statements alone are insufficient. The traverse must address the “ultimate facts.” The State’s bare assertion, made without factual support, that “the false social security number and false date of birth” are sufficient to “establish a prima facie case of guilt,” and that, therefore, the “State would deny” fails to meet that burden.
14. The balance of the state’s Traverse and Demurrer consists of legal argument, and not the assertion of material facts sufficient to traverse the motion to dismiss. The defendant, pursuant to Rule 3.190(d), Fla. R. Crim. P. requests that a hearing be set on the motion to dismiss, at a time convenient to the court.
WHEREFORE, it is respectfully requested that this Court enter an order striking said Traverse, or striking those portions of the State’s Traverse and Demurrer of Defendant’s Motion to Dismiss which are either legally and/or factually deficient, and granting the Defendant’s Motion to Dismiss, or, alternatively, setting the Defendant’s Motion to Dismiss for hearing.