Often times I am posed with a question, can’t the Judge just dismiss this thing? Getting a case dismissed by the Judge prior to trial happens very rarely. Under Rule 3.190(c) the court may at any time entertain a motion to dismiss on any of the following grounds:
(1) The defendant is charged with an offense for which the defendant hasbeen pardoned.
(2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.
(3) The defendant is charged with an offense for which the defendant previously has been granted immunity.
(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
The most common reasons for the Judge dismissing a case are under subsection (c)(4). In this instance the Defendant has to swear under oath that the facts presented are true, and they don’t fit the criteria under the statute.
Most cases there are facts that are in dispute, therefore it is a he said/she said matter. It is up for the trier of fact (Jury)to determine who is correct.
So the next question I get is, how can we get it thrown out? The State has the power to dismiss charges they file. It is called a nolle prosequi. It is defined as formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
This is where a good attorney pre-trial can show the state through lack of evidence, conflict in evidence, conflict in character that their case is not worth pursing.
So typically when I am asked, if the Judge can “throw it out” I say no, but we will do our best to make sure that the State does.