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 Nos. 2D17-4863
) 2D18-933
JOEL DAVID FAY, JR., )
)
Appellee. ) CONSOLIDATED
)
Opinion filed September 6, 2019.
Appeals from the Circuit Court for Manatee
County; Hunter W. Carroll and Charles
Sniffen, Judges.
Ashley Moody, Attorney General,
Tallahassee, and Jason M. Miller and Elba
Caridad Martin, Assistant Attorneys General,
Tampa, for Appellant.
Peter Lombardo of Law Office of Peter
Lombardo, Bradenton, for Appellee.
VILLANTI, Judge.
The State appeals the trial court's order granting a motion to dismiss the
charge of burglary of an unoccupied dwelling filed against Joel David Fay, Jr. The State
also appeals the trial court's order dismissing an affidavit of violation of Fay's probation,
which was based on the commission of the new underlying charge. We consolidated
both cases for purposes of this appeal.
The State argues that the trial court should have denied Fay's motion to
dismiss because the State's circumstantial evidence established a prima facie case of
guilt. We agree and therefore reverse both dismissals.1
Approximately six months after a burglary occurred, the victim was
organizing clothes in her dresser when she noticed small stains on one of her white
shirts. The shirt was stored beneath one of the drawers that was ransacked during the
burglary. The victim could not remember the last time she wore the shirt but guessed it
had been over a year. She testified during her deposition that she would not have put
the shirt away with stains on it and that the person who left the stains was therefore the
burglar. The police sent the shirt to a forensic analyst, who determined that the stains
were droplets of blood and that the DNA in the blood matched Fay's DNA.
Fay filed a verified motion to dismiss pursuant to Florida Rule of Criminal
Procedure 3.190(c)(4), arguing that the circumstantial evidence was insufficient to
sustain a conviction because it failed to disprove Fay's reasonable hypothesis of
innocence that Fay's blood could have transferred on the victim's shirt at some point
prior to the burglary. During the motion to dismiss hearing, the State acknowledged that
the motion to dismiss accurately set forth the essential facts that would be presented at
1While the State also argues the trial court should have stricken Fay's
motion to dismiss because Fay failed to allege the facts "by personal knowledge," we
find that the jurat was sufficient to support the trial court's ruling. See Hudson v. State,
745 So. 2d 997, 999 (Fla. 2d DCA 1999). Because we conclude that the trial court had
a proper evidentiary basis to evaluate Fay's motion to dismiss, we need not address this
issue further.
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trial. The trial court found that the undisputed evidence failed to set forth a prima facie
case and granted Fay's motion to dismiss. We review this ruling de novo. See State v.
Trappen, 223 So. 3d 405, 407 (Fla. 2d DCA 2017) (citing Bell v. State, 835 So. 2d 392,
394 (Fla. 2d DCA 2003)).
"Under [the rule 3.190(c)(4)] procedure, a defendant may seek dismissal
where '[t]here are no material disputed facts and the undisputed facts do not establish a
prima facie case of guilt.' " Id. (quoting Fla. R. Crim. P. 3.190(c)(4)); see also State v.
Norwood, 66 So. 3d 388, 389 (Fla. 5th DCA 2011) ("When a motion to dismiss is based
on undisputed facts, dismissal is appropriate when the undisputed facts do not establish
a prima facie case of guilt."). The burden to demonstrate that the evidence does not
establish a prima facie case falls upon the defendant and all questions and inferences
must be resolved in favor of the State. Trappen, 223 So. 3d at 407 (first citing State v.
Cadore, 59 So. 3d 1200, 1202 (Fla. 2d DCA 2011); and then citing State v. Pasko, 815
So. 2d 680, 681 (Fla. 2d DCA 2002)).
When it comes to the weight of the evidence, however, "[a] trial court
cannot dismiss criminal charges simply because it concludes that the case will not
survive a motion for judgment of acquittal at trial." State v. Paredes, 191 So. 3d 936,
941 (Fla. 4th DCA 2016) (quoting State v. Jaramillo, 951 So. 2d 97, 99 (Fla. 2d DCA
2007)). Moreover, even " 'if the state's evidence is all circumstantial, whether it
excludes all reasonable hypotheses of innocence may only be decided at trial, after all
of the evidence has been presented,' and the issue cannot be resolved by a rule
3.190(c)(4) motion to dismiss." Id. at 942 (quoting Cadore, 59 So. 3d at 1203); accord
Jaramillo, 951 So. 2d at 98-99 (holding that the State may satisfy its burden to set forth
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a prima facie case by relying on circumstantial evidence); State v. Bonebright, 742 So.
2d 290, 292 (Fla. 1st DCA 1998) (holding that, because the undisputed circumstantial
evidence established a prima facie case of arson, the trial court should have denied the
motion to dismiss, irrespective of the defendant's hypothesis that someone else
committed the arson).
As such, the circumstantial evidence cases cited by Fay both at the
hearing and in his answer brief are unpersuasive because they analyze whether a
judgment of acquittal should have been granted, rather than a motion to dismiss. See
Paredes, 191 So. 3d at 941. Thus, at the motion to dismiss stage, the trial court should
not have reached the issue of whether the circumstantial evidence excluded Fay's
reasonable hypotheses of innocence.
Because the undisputed evidence established a prima facie case, the trial
court erred in dismissing this charge and we therefore reverse. We also reverse the
trial court's order dismissing the violation of probation charge and remand to allow the
court to reconsider its ruling in light of this opinion. See Monforto v. State, 31 So. 3d
976, 976 (Fla. 2d DCA 2010).
Reversed and remanded with directions.
LaROSE and ATKINSON, JJ., Concur.
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