Understanding Motions to Dismiss in Florida

Can I Get My Case Thrown Out Before Trial?

If you’re facing criminal charges in Tampa, Hillsborough County, or the surrounding areas, one of the first things you might wonder is:

“Can my case be dismissed before it ever goes to trial?”

The answer is: yes, sometimes it can. Florida law gives your defense attorney a powerful tool called a motion to dismiss. At The Brancato Law Firm, P.A., we use every legal option available to protect your rights and fight for your freedom. In many cases, a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) could be the key to ending your case early.

Let’s take a closer look at how it works—and how it might apply to your case.

What Is a Motion to Dismiss?

A motion to dismiss asks the judge to drop your charges before trial starts. Under Rule 3.190(c)(4), your lawyer can file this motion if:

• The facts are not in dispute, and
• Those facts don’t prove a crime, or
• The facts show you have a complete legal defense like self-defense or entrapment.

In simple terms: even if everything the police and prosecutor say is true, the law may still not support the charge.

This type of motion has been used in Florida courts for years. If the facts aren’t in dispute, and those facts don’t show a crime happened, the court can—and should—dismiss the case.
See Dorelus v. State, 747 So. 2d 368 (Fla. 1999); Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977); State v. Smith, 376 So. 2d 261 (Fla. 3d DCA 1979); State v. Holliday, 431 So. 2d 309 (Fla. 1st DCA 1983).

When Can This Motion Be Filed?

This motion only works when both sides agree on the facts. If there’s any disagreement—about what someone saw, what someone meant, or who did what—the judge will not grant the motion.

Also, the judge is not allowed to decide who’s telling the truth or weigh the strength of the evidence. They must assume the facts are true and look at them in the light most favorable to the State.  See State v. Hart, 677 So. 2d 385 (Fla. 4th DCA 1996); State v. Bell,  (Fla. 5th DCA 2004).

At The Brancato Law Firm, P.A., we carefully review all the facts from the very beginning. If the State’s evidence doesn’t prove a crime—even on paper—we take action fast.

What Does the Motion Need to Include?

For the judge to even consider a motion to dismiss, it must follow strict rules. The motion must:

• Clearly say that the facts are not in dispute
• Describe those facts in detail
• Show that the facts do not prove a crime or show a legal defense
  See State v. Maycock, 361 So. 2d 218 (Fla. 3d DCA 1978); State v. Sedlmayer, 375 So. 2d 887 (Fla. 3d DCA 1979).

The motion also must be sworn to by someone with firsthand knowledge—usually the person charged. See Goodmakers v. State, 450 So. 2d 888 (Fla. 2d DCA 1984).

And it must say the facts are true and correct—not just “true to the best of my knowledge.”
See State v. Rodriguez, 523 So. 2d 1141 (Fla. 1988).

Warning: Anything you say in this motion can be used against you later. That’s why it’s so important to have an experienced Tampa criminal defense attorney guide you through it.

How Does the State Respond?

If your motion is legally correct, the State has three main options:

• They can file a traverse, which means they deny one or more facts, or
• They can file a demurrer, which says they accept the facts but disagree with your legal argument.
• They can stand silent and let the judge rule.

If the State files a proper traverse, and they dispute even one key fact, the court must deny the motion. See State v. Sawyer, 526 So. 2d 191 (Fla. 3d DCA 1988).

If the State files a traverse, it must “specifically dispute the material facts or add additional material facts that meet the minimal requirements of a prima facie case of guilt.” State v. Nunez, 881 So. 2d 658, 661 (Fla. 3d DCA 2004); see also Kalogeropolous, 758 So. 2d at 111.

When statutory language is clear, courts apply the plain meaning without resorting to further construction. State v. Burris, 875 So. 2d 408, 410 (Fla. 2004).

But if the State doesn’t respond—or their response is weak or unclear—the judge can grant the motion. See Bell v. State, 835 So. 2d 392 (Fla. 2d DCA 2003); State v. Castellano, 488 So. 2d 668 (Fla. 4th DCA 1986).

What Happens If the Motion Is Granted?

If the judge agrees with your motion, the case is dismissed. That means:

• No trial
• No jail
• You walk away

The State can appeal, but in many cases, a well-prepared motion to dismiss ends the case completely.

If the judge denies the motion, you can still go to trial or enter a no contest plea and reserve the right to appeal the decision. See Carroll v. State, 761 So. 2d 417 (Fla. 5th DCA 2000).

Why You Need the Right Attorney

Not every lawyer files motions to dismiss. It takes experience, deep legal knowledge, and attention to detail. If the motion is written poorly—or includes facts that come back to hurt you later—it can make your situation worse.

At The Brancato Law Firm, P.A., we know how to build these motions the right way. Attorney Rocky Brancato has over 25 years of experience defending clients in Tampa, Hillsborough County, and across Florida. As a former lead attorney in one of Florida’s top sex crimes units, he knows exactly how to challenge weak cases before they ever reach a jury.

Charged With a Crime in Tampa or Hillsborough County?

If you or someone you love is facing criminal charges, don’t wait to find out whether your case could be dismissed early.

Call The Brancato Law Firm, P.A. today at (813) 592-8981 for a confidential case review. We’ll examine the facts, advise you of your options, and fight for the best possible outcome—before your case goes to trial.

The Brancato Law Firm, P.A.
Serving Tampa, Hillsborough County, and the Greater Tampa Bay Area
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