V.1. Pretrial Motions: Motions

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Every pretrial motion and every pleading in response must be in writing and signed by the party or the attorney for the party. This requirement may be waived by the court for good cause shown. Each motion or pleading must state the ground or grounds on which it is based. A copy must be served on the adverse party. A certificate of service must accompany the filing of any pleading.

All defenses available to a defendant by plea, other than not guilty, must be made by motion to dismiss the charging document, whether the same relates to matters of form, substance, former acquittal, former jeopardy, or any other defense, including immunity under section 776.032, Florida Statutes.

The court must dismiss any motion not filed before the deadline set by the court, unless the defendant demonstrates good cause for the delay, or the motion is based on fundamental grounds.

The court may receive evidence on any issue of fact necessary to decide the motion.

The defendant may file a motion to dismiss on the basis that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt. At least two days before any hearing on the motion, the state may file a traverse or a demurrer. In considering the motion, the court must presume that factual matters alleged in it are true unless the state specifically denies them in the traverse. A traverse must be sworn and may allege additional material facts. The court must deny the motion to dismiss if, in its traverse, the state presents sworn evidence establishing with specificity the existence of a material disputed fact.

If the court decides to grant a motion to dismiss, it must, upon request by either party, and prior to the attachment of jeopardy, render a written order containing findings of fact and conclusions of law.

If the motion to dismiss is granted, the court may order that the defendant be held in custody or admitted to bail for a reasonable specified time pending the filing of a new charging document. If a new charging document is not filed within the time specified in the order, or within such additional time as the court may allow for good cause shown, the defendant, if in custody, must be released, unless some other charge justifies a continuation in custody. If the defendant has been released on bail, the defendant and the sureties must be exonerated; if money or bonds have been deposited as bail, the money or bonds must be refunded.

A continuance within the meaning of this rule is the postponement of a cause for any period of time.

On motion of the state or a defendant or on its own motion, the court may grant a continuance, in its discretion for good cause shown.

A motion for continuance may be made only before or at the time the case is set for trial, unless good cause for failure to so apply is shown or the ground for the motion arose after the cause was set for trial.

A motion for continuance must be accompanied by a certificate of the movant’s counsel that the motion is made in good faith.

The party applying for a continuance may file affidavits in support of the motion, and the adverse party may file counter-affidavits in opposition to the motion.

A defendant who claims that the state obtained evidence as a result of an unlawful search or seizure by a government agent or who claims that the state obtained statements unlawfully from the defendant may move to suppress such evidence.

Every motion to suppress evidence must state clearly the particular evidence or statements sought to be suppressed, the reasons for suppression, and a statement of the facts on which the motion is based.

Before hearing evidence, the court must determine if the motion is legally sufficient. The court may receive evidence on any issue of fact necessary to be decided to rule on the motion.

A motion to suppress must be filed before trial or before a deadline set by the trial judge unless there is good cause for the delay or the state does not object.

If a motion to suppress is granted, upon request by either party, the judge must render a written order containing findings of fact and conclusions of law before jeopardy attaches.

After the filing of a charging document, the defendant or the state may move for an order to perpetuate testimony. The motion must be verified or supported by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing, that the witness’s testimony is material, and that it is necessary to take the deposition to prevent a failure of justice. A party opposing the motion must object and the court may hear evidence to determine whether to grant or deny the motion. The court may, even in the absence of opposition, deny a motion to perpetuate testimony that is filed within 10 days of the trial date, absent a showing of good cause by the movant.

If the defendant or the state desires to perpetuate the testimony of a witness living in or out of the state whose testimony is material and necessary to the case, the same proceedings shall be followed as provided in subdivision (h)(1), but the testimony of the witness may be taken before an official court reporter, transcribed by the reporter, and filed in the trial court.

The state, the defendant, and the defendant’s attorney must be given reasonable notice of the time and place set for the deposition. An officer having custody of a defendant must be notified of the time and place and must produce the defendant at the examination and keep the defendant in the presence of the witness during the examination A defendant not in custody may be present at the examination, but the failure to appear after notice and tender of expenses constitutes a waiver of the right to be present. If the state moved to perpetuate the testimony and if the deposition to perpetuate testimony is not done remotely, the state must pay to the defendant’s attorney and to a defendant not in custody the expenses of travel and subsistence for attendance at the examination. The state must make available to the defendant for examination and use at the deposition any statement of the witness being deposed that is in the possession of the state and that the state would be required to make available to the defendant if the witness were testifying at trial. 

Unless the parties agree otherwise, the trial judge or a commissioner appointed by the trial judge must be present during the deposition to preside and make rulings on evidentiary objections.

Except as otherwise provided in this rule or in caselaw, the rules of civil procedure governing the taking of oral depositions apply for depositions to perpetuate testimony. Witnesses testifying during a deposition to perpetuate testimony must be placed under oath such that they are subject to perjury. If admissible, a deposition to perpetuate testimony taken under this rule is substantive evidence. Discovery depositions under Florida Rule of Criminal Procedure 3.220 do not qualify as depositions to perpetuate testimony.

A deposition to perpetuate testimony is inadmissible when the attendance of the witness can be procured, unless the witness testifies in court and the deposition to perpetuate testimony is used for an otherwise permissible purpose. The deposition is inadmissible if the court determines that any person whose deposition has been taken is absent because of procurement, inducement, or threats by the party seeking admission or by any person on behalf of the party seeking admission of the deposition. A deposition to perpetuate testimony is to be read or played for the factfinder. A transcript or audio or visual recording of the deposition to perpetuate testimony must not be admitted into evidence.

On motion by the state and in accordance with section 825.106, Florida Statutes, the court must consider advancing a case on the trial docket if the alleged victim is an elderly person or a disabled adult. Prosecutions under chapter 782, chapter 784, chapter 787, chapter 794, chapter 796, chapter 800, chapter 827, or chapter 847 that involve the abuse of a child or unlawful sexual contact or acts performed in the presence of, with, or upon a child under the age of 16 must be heard and disposed of as expeditiously as possible in accordance with section 918.0155, Florida Statutes.

1968 Adoption. (a) New; devised by committee. (b) Substantially the same as section 909.02, Florida Statutes, except changes name of “motion to quash” to “motion to dismiss.” This conforms to the terminology of the Federal Rules of Criminal Procedure. The statute authorizing the state to appeal from certain orders, section 924.07, Florida Statutes, should be amended by substituting the words “motion to dismiss” for “motion to quash.” (c) Combines the substance of sections 909.01 and 909.06, Florida Statutes. Subdivision (4) affords a new remedy to an accused. Although there is now a conclusive presumption of probable cause once an indictment or information is filed (see Sullivan v. State, 49 So. 2d 794 (Fla. 1951)), it is felt that this rule is necessary. Primarily, this procedure will permit a pretrial determination of the law of the case when the facts are not in dispute. In a sense, this is somewhat similar to summary judgment proceedings in civil cases, but a dismissal under this rule is not a bar to a subsequent prosecution. (d) New; based on Marks v. State, 115 Fla. 497, 155 So. 727 (1934), and what is generally regarded as the better practice. Hearing provision based on federal rule 41(e). (e) Combines federal rule 12(b)(5) and section 909.05, Florida Statutes. With reference to the maximum time that a defendant will be held in custody or on bail pending the filing of a new indictment or information, the trial court is given discretion in setting such time as to both the indictment and information. This proposal differs from section 909.05, Florida Statutes, with reference to the filing of a new indictment in that the statute requires that the new indictment be found by the same grand jury or the next grand jury having the authority to inquire into the offense. If the supreme court has the authority to deviate from this statutory provision by court rule, it seems that the trial court should be granted the same discretion with reference to the indictment that it is granted concerning the information. The statute is harsh in that under its provisions a person can be in custody or on bail for what may be an unreasonable length of time before a grand jury is required to return an indictment in order that the custody or bail be continued. (g)(1) This subdivision is almost the same as section 916.02(1), Florida Statutes. (g)(2) This subdivision is almost the same as section 916.02(2), Florida Statutes. (g)(3) This subdivision is almost the same as section 916.03, Florida Statutes. (g)(4) This subdivision rewords a portion of section 916.04, Florida Statutes. (g)(5) This subdivision rewords section 916.07, Florida Statutes. (h) Same as federal rule 41(e) as to the points covered. (i) This rule is based on 38-144-11 of the Illinois Code of Criminal Procedure and federal rule 41(e). (j) This subdivision rewords and adds to federal rule 14. It covers the subject matter of section 918.02, Florida Statutes. (k) This rule is almost the same as federal rule 13, with provision added for trial by affidavit. (l) Substantially same as section 916.06, Florida Statutes, with these exceptions: application cannot be made until indictment, information, or trial affidavit is filed; application must be made at least 10 days before trial; oral deposition in addition to written interrogatories is permissible.

1972 Amendment. Subdivision (h) is amended to require the defendant to specify the factual basis behind the grounds for a motion to suppress evidence. Subdivision (l) is amended to permit the state to take depositions under the same conditions that the defendant can take them. Former subdivisions (j) and (k) transferred to rules 3.150, 3.151, and 3.152. Subdivisions (l) and (m) renumbered (j) and (k) respectively. Otherwise, same as prior rule.

1977 Amendment. This amendment resolves any ambiguity in the rule as to whether the state must file a general or a specific traverse to defeat a motion to dismiss filed under the authority of rule 3.190(c)(4). See State v. Kemp, 305 So. 2d 833 (Fla. 3d DCA 1974). The amendment clearly now requires a specific traverse to specific material fact or facts.

1992 Amendment. The amendments, in addition to gender neutralizing the wording of the rule, make a minor grammatical change by substituting the word “upon” for “on” in several places. The amendments also delete language from subdivision (a) to eliminate from the rule any reference as to when pretrial motions are to be served on the adverse party. Because rule 3.030 addresses the service of pleadings and papers, such language was removed to avoid confusion and reduce redundancy in the rules.

2002 Amendment. If the trial court exercises its discretion to consider the motion to suppress during trial, the court may withhold ruling on the merits of the motion, and motion for a judgment of acquittal, and allow the case to be submitted to the jury. If the defendant is acquitted, no further proceedings regarding the motion to suppress or motion for a judgment of acquittal would be necessary. However, if the jury finds the defendant guilty of the crime charged, the trial court could then consider the motion to suppress post-trial in conjunction with the defendant’s renewed motion for a judgment of acquittal or motion for new trial.