       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 04, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-726
                          Lower Tribunal No. 14-53-P
                             ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                        Ryan Charles Lindemuth,
                                    Appellee.



       An Appeal from the Circuit Court for Monroe County, William R. Ptomey,
Jr., Judge.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellant.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special
Assistant Public Defender, and Marlene Brito and Elaine A. Carbuccia, Certified
Legal Interns, for appellee.


Before ROTHENBERG, SALTER, and SCALES, JJ.

      ROTHENBERG, J.
      The issue before this Court is whether the State may re-file an information

that has been dismissed without prejudice after the trial court struck and therefore

did not consider the State’s response to the defendant’s sworn motion to dismiss

pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). For the reasons that

follow, we conclude that the State was not barred from re-filing an identical

information. We therefore reverse the trial court’s order dismissing the re-filed

information and remand for further proceedings.

      The defendant, Ryan Charles Lindemuth, was charged by information with

one count of interference with the custody of a minor in violation of section

787.03(1), Florida Statutes (2014). The defendant filed a sworn motion to dismiss

the information pursuant to rule 3.190(c)(4), asserting that there were no material

disputed facts and the undisputed facts did not establish a prima facie case of guilt

against the defendant.

      An hour prior to the scheduled hearing on the defendant’s motion to dismiss

the information, the State filed an unsworn “Traverse/Demurrer,” setting forth

facts not provided by the defendant in his sworn motion to dismiss and asserting

that these facts, along with the facts alleged in the defendant’s motion to dismiss,

established a prima facie case of interference with the custody of a minor in

violation of section 787.03(1). At the hearing, defense counsel moved to strike the

State’s traverse/demurrer because it was unsworn and untimely filed. Although the



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Assistant State Attorney was prepared to swear to his traverse/demurrer in open

court and had moved for a continuance to allow defense counsel to review the

State’s responsive pleading, the trial court struck the traverse/demurrer on the basis

that it was untimely filed and unsworn.        Based on the facts alleged in the

defendant’s unrebutted sworn motion to dismiss, the trial court dismissed the

information without prejudice to allow the State to file an “amended information”

and set the matter for a status hearing.

      Thereafter, the State filed a new information that was identical to the

information dismissed without prejudice by the trial court except for the new date

and signature on the document. Because the State’s re-filed information was

identical to the information previously dismissed, the trial court sua sponte

dismissed the re-filed information. This was clearly error.

      First, when the trial court sua sponte dismissed the re-filed information there

was no pending motion to dismiss that information. The only motion to dismiss

filed by the defendant was a motion to dismiss the initial information. It was

clearly error to dismiss the charges where no written motion to dismiss had been

filed. See State v. Suazo, 973 So. 2d 1273, 1273-74 (Fla. 2d DCA 2008) (“This

court has repeatedly held that it is improper for a trial court to dismiss charges

when the defendant has not filed a written motion to dismiss.”) (citing Fla. R.

Crim. P. 3.190(a)).



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      Second, the dismissal of the re-filed information based on the fact that it was

identical to the information previously dismissed without prejudice was also error

and is in direct conflict with clear and binding precedent of this Court. The

identical issue was decided by this Court over twenty-five years ago in State v.

Gellis, 375 So. 2d 885 (Fla. 3d DCA 1979). In Gellis, the defendant filed a rule

3.190(c)(4) motion to dismiss, which the trial court granted because the State did

not file a traverse. When the State re-filed the identical information, the defendant

moved to dismiss the re-filed information on the ground that the trial court had

previously dismissed the identical information. Following a hearing, the trial court

granted the defendant’s motion to dismiss the re-filed information, and the State

appealed. In reversing the dismissal of the re-filed information, this Court held:

              The law is well-settled in Florida that the state is not barred
      from re-filing an information on the ground that the identical
      information has previously been dismissed under Fla. R. Crim. P.
      3.190(c)(4). The doctrines of double jeopardy, collateral estoppel and
      res judicata, whether considered individually or collectively, cannot,
      under these circumstances, bar the state from re-filing the identical
      information. The doctrine of res judicata applies only where, upon the
      re-filing of said information, the trial court is confronted with the
      identical motion to dismiss together with the identical traverse or
      demurrer, or lack thereof, as the court was previously confronted with
      when it dismissed the first information. Then, and only then, the court
      would be compelled to dismiss the second information on res judicata
      grounds as the identical issue had previously been litigated between
      the parties in the defendant’s favor. The latter did not occur in this
      cause, and, accordingly, the instant information was not subject to
      dismissal.

Gellis, 375 So. 2d at 886 (citations omitted); see also State v. Soto, 869 So. 2d 641


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(Fla. 5th DCA 2004) (holding that when the State does not traverse a rule

3.190(c)(4) motion to dismiss, the State is not precluded from refiling the same

charges after dismissal, citing to Gellis).

      Gellis is directly on point and binding precedent upon which the trial court

was compelled to follow.            Because the trial court struck the State’s

traverse/demurrer to the initial information, it is as if no traverse had been filed,

and thus, the trial court did not address or rely on the State’s traverse/demurrer

when it dismissed the initial information. Therefore, there has never been a ruling

on a sworn motion to dismiss that was traversed by the State.

      Accordingly, the trial court erred by: (1) sua sponte dismissing the re-filed

information where there was no motion to dismiss filed as to that information; and

(2) dismissing the re-filed information based solely on the ground that it was

identical to the information that had been previously dismissed without prejudice.

We therefore reverse the order under review and remand for further proceedings.

On remand, the defendant may file a sworn motion to dismiss the re-filed

information to which the State may traverse or demur, and thereafter, in ruling on

the defendant’s motion to dismiss, the trial court must consider any sworn and

timely filed traverse/demurrer filed by the State.

      Reversed and remanded.




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