NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant, )
)
v. ) Case No. 2D14-1856
)
GUILLERMO RAMIREZ, )
)
Appellee. )
_________________________________ )
Opinion filed November 6, 2015.
Appeal from the Circuit Court for
Hillsborough County; Thomas Barber,
Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Gillian N. Leytham,
Assistant Attorney General, Tampa,
for Appellant.
Howard L. Dimmig, II, Public Defender,
and Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellee.
NORTHCUTT, Judge.
The State charged Guillermo Ramirez with trafficking in illegal drugs
based on his possession of forty hydromorphone pills. See § 893.135(1)(c)(1)(a), Fla.
Stat. (2013). Ramirez filed a motion to dismiss the information pursuant to Florida Rule
of Criminal Procedure 3.190(c)(4), claiming that he had a lawful prescription for the
drugs. Ramirez attached a pharmacy record reflecting that he had been prescribed
hydromorphone tablets. Although the State's traverse pointed out that the pills Ramirez
possessed were a different strength than the pills he had been prescribed, the court
dismissed the information. We reverse.
The various burdens involved when a defendant seeks dismissal of an
information under the rule were explained in State v. Kalogeropolous, 758 So. 2d 110
(Fla. 2000). The defendant's sworn motion must allege specific facts that show "[t]here
are no material disputed facts and the undisputed facts do not establish a prima facie
case of guilt." Fla. R. Crim. P. 3.190(c)(4). To defeat the motion, the State's traverse
must specifically deny the facts set forth in the motion or add additional facts that meet
the minimal requirement of a prima facie case. See Fla. R. Crim. P. 3.190(d);
Kalogeropolous, 758 So. 2d at 112.
The State met its burden in this case. Ramirez's sworn motion alleged
that he had a lawful prescription for hydromorphone. The pharmacy record attached to
support this fact showed that eight-milligram tablets had been dispensed to him. The
State's traverse denied that the pharmacy record required a dismissal because lab
results from the Florida Department of Law Enforcement demonstrated that the pills
found in Ramirez’s possession were four milligrams in size, not the eight-milligram pills
that had been prescribed. This fact specifically refuted the factual basis of Ramirez's
prescription defense as set forth in his motion to dismiss.
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The State having established that a material fact was in dispute, denial of
Ramirez's motion to dismiss was mandatory. See Fla. R. Crim. P. 3.190(d);
Kalogeropolous, 758 So. 2d at 112. Accordingly, we reverse and remand with
instructions to reinstate the information.
SILBERMAN and SALARIO, JJ., Concur.
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