In the News

Attorney Patrick Leduc sues Pasco County seeking a Declaratory Judgment and Injunctive Relief related to the Pasco County Sexual Offender and Sexual Predator Ordinance.  Read Leduc’s Complaint for Declaratory and Injunctive Relief

Up Next on Florida You Judge: Hillsborough Judicial Candidate Robin Fuson

Robin Fuson

Robin Fuson

 

 Also, Attorney Chris Westmoreland with an online segment bringing the “Florida Legislative Update for 2016”

 

FOLLOW UP on FYJ post “Pinellas County Judge Paul Levine – “On Second Thought”: Grants Motion to Dismiss after Initially Denying

Attorney Robert Eckard weighs in –

I want to give you an update on the State v. Bradford case that you recently posted information on the Florida You Judge Blog. If you will recall, this is a case where Judge Paul Levine, reconsidered his prior ruling, denying the C-4 Motion to Dismiss, and then reversed himself and granted the Defendant’s Motion. Kudos to Levine for being an independent jurist! The State then took an appeal.

I was happy to see that the circuit court, in its appellate capacity, affirmed Judge Levine’s original ruling in theBradford case. You may recall, this dealt with a Possession of Marijuana charge where the defendant filed a C-4 Motion to Dismiss based on a constructive possession analysis. Upon hearing the motion, Judge Levine initially denied the C-4 and later upon further review, granted the motion.

I have also attached a copy of the Appellate Order affirming Judge Levine’s decision.

I feel there are three main points the appellate court discussed in affirming Judge Levine’s original order.

  1. 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.

While the state is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant, this rule presumes that some evidence exists and that the state will provide this evidence in a clear and specific fashion to dispute the material facts posited by the defendant.

  1. The court may receive evidence on any issue of fact necessary to the decision on the motion.

The appellate court ruled there is no impediment to the trial court considering evidence in its effort to determine whether there are issues of fact for a jury’s determination. This is especially true when, as was the case here, the state does not specifically deny the allegations contained in the motion. In my original ruling, the court called the officer as a witness seeking detailed information as to where and how the marijuana was found. The testimony elicited from the officer was not inconsistent with the factual assertions set forth in the defendant’s motion. Essentially, there were no disputed facts for a jury to weigh.

  1. The trial court can consider and weigh the facts in a constructive possession case to determine if there is a threshold showing of possession.

In the Bradford case, the state offered the trial court no independent proof that the defendant was in possession of the drugs. Therefore, the upshot of the appellate decision in Bradford seems to allow the trial court discretion in determining whether facts are sufficient in a constructive possession case to allow the state to proceed once a C-4 is filed. This departs somewhat from the rule in Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979) that seems to always make that question one for the jury. Mere proximity to the contraband is insufficient in itself to meet this burden.

Finally, A big kudos to Attorney Richard “Dick” Watts for his advocacy for Mr. Bradford.

Judge Paul Levine

 
 
 

» recent comments

» archives

» Subscribe to Blog via Email

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

» Tampa Bay Criminal Defense

» Tampa Bay Criminal Defense

Ad