Sample Motion to Dismiss

STATE OF FLORIDA

v.

Case No. *****************

*********************

_______________________ /

COMES NOW, the Defendant, *******************, by and through his undersigned attorney and hereby respectfully requests this Honorable Court pursuant to Fla. Crim. P. 3.190(c)(4) grant his Motion to Dismiss counts one, two and three and alleges that the following are all of the material facts, and undisputed material facts do not give rise to a Prima Facia case of guilt against the Defendant:

1. On July 21, 2015, at approximately 3:30am two officers were conducting proactive patrol in the area of Gandy and Manhattan Blvd. when they observed the Defendant driving a silver Toyota Corolla.
2. A random tag check of the Defendant’s vehicle revealed that the Defendant, who had been previously cited in this vehicle before, had an outstanding warrant for his arrest for Fleeing and Attempting to Elude.
3. The Defendant turned North of Gandy Blvd. and pulled into the McDonalds located at 4818 Manhattan Avenue South and proceeded to place a drive through order.
4. Two officers decided to execute a box-in maneuver, after determining the Defendant was a flight risk, and followed the Defendant’s vehicle parking several feet behind the Defendant’s vehicle while waiting for backup to arrive on scene.
5. Officer ********** and Officer ********* arrived on scene shortly after and a box in maneuver was conducted on the Defendant’s vehicle.
6. Officer *********** initiated direct contact with the Defendant’s vehicle with his vehicle by tapping the front bumper to execute the box-in.
7. Officer ********** vehicle made direct contact with Defendant’s vehicle from the rear.
8. Officer ********* vehicle made direct contact with the Defendant’s vehicles passenger side front bumper.
9. The Defendant was able to defeat the box-in placing his car into drive and then reverse going forward and backwards striking Officer *********, Officer ******** and Officer ********* patrol cars.
10. A chase ensued and the Defendant escaped and was subsequently arrested later without incident.
11. On August 19, 2015, the State Attorney filed a five (5) count information charging the Defendant with three counts (count one, two, and three) of Aggravated Battery on a Law Enforcement Officer using a Deadly Weapon, Fleeing to Elude Highspeed (count four), Resisting Officer Without Violence (count five), and Driving While License Canceled, Suspended or Revoked (count six).

Based on the video and Officer ******** testimony at the deposition, he arrived on scene and “was still moving,” when his vehicle rammed the Defendant’s vehicle. It is clear, based on the video, that both Officer ********** and the Defendant’s vehicle were moving when they made contact with each other.

However, Officer ******* was not in his vehicle and was approximately ten (10) feet away from his vehicle when the Defendant made contact with his vehicle for the second time. “The touching or striking in the present case was to the outer body of an automobile which Trooper Thomas was driving, with no direct impact upon or even injury to the trooper. In fact, the evidence shows that the trooper was not even jostled about in the car as a matter of law the automobile in this did not have such an intimate connection with the person of the trooper as to conclude that a battery had occurred.” See Williamson v. State of Florida, 510 So.2d 335 (Fla. 4th DCA 1997) “In order to prove the offense of aggravated battery arising out of the defendant ramming of another vehicle, it is necessary for the State to show that the occupants of the rammed vehicle were at least jostled or moved about within their vehicle.” See V.A. v. State of Florida, 819 So.2d 847 (Fla. 3rd DCA 2002) Since Officer ******* was not in his vehicle during the second collision he was not jolted or moved about within his vehicle.

Additionally, Officer ********** patrol car was first to make contact with the Defendant’s vehicle by “tapping the front bumper.” The Defendant intent was to escape the box-in maneuver, after he was struck by Officer ********** patrol car, not to ram Officer ******** patrol car with the intent to commit Aggravated Battery. “In order to prove aggravated battery, the State must first prove that a simple battery occurred.” See Clark v. State of Florida, 783 So.2d 967.

Lastly, Officer ******** was not in his patrol car when the Defendant’s vehicle reversed into and struck his vehicle therefore he was not jostled or moved about within his vehicle.

WHEREFORE the Defendant, ***********, prays this Honorable Court to issue an order dismissing count one, two and three of the Information.