RULE 3.190. PRETRIAL MOTIONS

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

(b) Motion to Dismiss; Grounds. All defenses available to a
defendant by plea, other than not guilty, shall be made only by
motion to dismiss the indictment or information, whether the same
shall relate to matters of form, substance, former acquittal, former
jeopardy, or any other defense.

(c) Time for Moving to Dismiss. Unless the court grants
further time, the defendant shall move to dismiss the indictment or
information either before or at arraignment. The court in its
discretion may permit the defendant to plead and thereafter to file a
motion to dismiss at a time to be set by the court. Except for
objections based on fundamental grounds, every ground for a
motion to dismiss that is not presented by a motion to dismiss
within the time provided herein, shall be considered waived.
However, 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 has been 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 facts on which the motion is based should be alleged
specifically and the motion sworn to.

(d) Traverse or Demurrer. The state may traverse or demur
to a motion to dismiss that alleges factual matters. Factual matters
alleged in a motion to dismiss under subdivision (c)(4) of this rule
shall be considered admitted unless specifically denied by the state
in the traverse. The court may receive evidence on any issue of fact
necessary to the decision on the motion. A motion to dismiss under
subdivision (c)(4) of this rule shall be denied if the state files a
traverse that, with specificity, denies under oath the material fact or
facts alleged in the motion to dismiss. The demurrer or traverse
shall be filed a reasonable time before the hearing on the motion to
dismiss.

(e) Effect of Sustaining a Motion to Dismiss. If the motion
to dismiss is sustained, 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 indictment or information. If a new
indictment or information 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, shall be discharged,
unless some other charge justifies a continuation in custody. If the
defendant has been released on bail, the defendant and the sureties
shall be exonerated; if money or bonds have been deposited as bail,
the money or bonds shall be refunded.

(f) Motion for Continuance.

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

(2) Cause. 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.

(3) Time for Filing. 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.

(4) Certificate of Good Faith. A motion for continuance
shall be accompanied by a certificate of the movant’s counsel that
the motion is made in good faith.
(5) Affidavits. 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.

(g) Motion to Suppress Evidence in Unlawful Search.

(1) Grounds. A defendant aggrieved by an unlawful
search and seizure may move to suppress anything so obtained for
use as evidence because:

(A) the property was illegally seized without a
warrant;

(B) the warrant is insufficient on its face;

(C) the property seized is not the property
described in the warrant;

(D) there was no probable cause for believing the
existence of the grounds on which the warrant was issued; or

(E) the warrant was illegally executed.

(2) Contents of Motion. Every motion to suppress
evidence shall state clearly the particular evidence sought to be
suppressed, the reasons for suppression, and a general statement
of the facts on which the motion is based.

(3) Hearing. Before hearing evidence, the court shall
determine if the motion is legally sufficient. If it is not, the motion
shall be denied. If the court hears the motion on its merits, the
defendant shall present evidence supporting the defendant’s
position and the state may offer rebuttal evidence.

(4) Time for Filing. The motion to suppress shall be
made before trial unless opportunity therefor did not exist or the
defendant was not aware of the grounds for the motion, but the
court may entertain the motion or an appropriate objection at the
trial.
(h) Motion to Suppress a Confession or Admission
Illegally Obtained.

(1) Grounds. On motion of the defendant or on its own
motion, the court shall suppress any confession or admission
obtained illegally from the defendant.

(2) Contents of Motion. Every motion made by a
defendant to suppress a confession or admission shall identify with
particularity any statement sought to be suppressed, the reasons
for suppression, and a general statement of the facts on which the
motion is based.

(3) Time for Filing. The motion to suppress shall be
made before trial unless opportunity therefor did not exist or the
defendant was not aware of the grounds for the motion, but the
court in its discretion may entertain the motion or an appropriate
objection at the trial.

(4) Hearing. The court shall receive evidence on any
issue of fact necessary to be decided to rule on the motion.

(i) Motion to Take Deposition to Perpetuate Testimony.

(1) After the filing of an indictment or information on
which a defendant is to be tried, the defendant or the state may
apply for an order to perpetuate testimony. The application shall 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.
The court shall order a commission to be issued to take the
deposition of the witnesses to be used in the trial and that any
nonprivileged designated books, papers, documents, or tangible
objects be produced at the same time and place. If the application is
made within 10 days before the trial date, the court may deny the
application.
(2) 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 (i)(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.

(3) If the deposition is taken on the application of the
state, the defendant and the defendant’s attorney shall be given
reasonable notice of the time and place set for the deposition. The
officer having custody of the defendant shall be notified of the time
and place and shall 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 shall constitute a waiver of the right to be present. The
state shall 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 shall 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.

(4) The application and order to issue the commission
may be made either in term time or in vacation. The commission
shall be issued at a time to be fixed by the court.

(5) Except as otherwise provided, the rules governing
the taking and filing of oral depositions, the objections thereto, the
issuing, execution, and return of the commission, and the opening
of the depositions in civil actions shall apply in criminal cases.

(6) No deposition shall be used or read into evidence
when the attendance of the witness can be procured. If the court
determines that any person whose deposition has been taken is
absent because of procurement, inducement, or threats of any
person on behalf of the state or of the defendant or of any person on
the defendant’s behalf, the deposition shall not be read in evidence
on behalf of the defendant.
(j) Motion to Expedite. On motion by the state, the court,
in the exercise of its discretion, shall take into consideration the
dictates of sections 825.106 and 918.0155, Florida Statutes (1995).

Committee Notes

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.