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Posted on Thursday May 01, 2014

By DeLand Criminal Defense Attorney Richard “Jake” Jackson

            A good criminal defense attorney will look for appropriate circumstances to file a Motion To Dismiss the charges that his client is facing.  A Motion To Dismiss can challenge the law that the Defendant is accused of violating; or it can challenge whether the Defendant’s actions violated the law; or it can challenge whether law was properly applied to the Defendant in a particular case.  The following real-life examples illustrate the effectiveness of a Motion To Dismiss.

Deltona, FL:    My client was accused of participating in a Carjacking and Kidnapping.  A small child was in a baby seat in the car at the beginning of the incident.  One of the suspects removed the baby seat with the child from the car and placedit on the ground before the car was stolen.  We filed a Motion To Dismiss the kidnapping charge, because for the crime of kidnapping the law requires that a victim must have been confined or moved and that the required movement or confinement of the victim must not be slight, inconsequential, and merely incidental to another offense. The movement or confinement of the child during this incident was not sufficient under the law to constitute the crime of kidnapping, so the Judge granted our Motion and dismissed that charge.

DeLand, FL:   My client was accused of breaking into a home and stealing a locked safe which contained a gun, and he was charged with Burglary of a Dwelling While Armed.  Normally a burglary in which a gun is stolen can be charged as a burglary “while armed,”which substantially increases the penalties.  However, since the gun in this case was in a locked safe and my client did not have access to it, it was inappropriate to charge him with a burglary “while armed.”  We filed a Motion To Dismiss, the charge was amended to unarmed burglary, and we negotiated a favorable plea deal.

DeLand, FL:   My client, who was on probation, was stopped by a Volusia County Deputy and initially gave a false name and date of birth to the Deputy.  The Deputy radioed in the information, and then told my client that he was unable to verify his identity information.  My client then gave him his true name and date of birth.  My client was charged with Giving a   False Name To Law Enforcement Officer, and Violation of Probation.  We filed a Motion To Dismiss, because under Florida law it is a defense to the charge if the person who gave a false name provides his true name before he is arrested and before the officer relies on the false information while completing reports or citations.  Our Motion was granted and all charges were dismissed.

DeLeon Springs, FL:  My client, who was observed to be in possession of a firearm, was charged with PossessionOf A Firearm When Subject To An Injunction Against Committing Acts Of Domestic Violence.  He did have an Injunction against him at that time, but it was not a Domestic Violence Injunction.  The Judge granted our Motion To Dismiss the charge because the law prohibiting possession of firearms by persons who are subject to Domestic Violence Injunctions did not apply to persons subject to other kinds of injunctions.

DeLand, FL:   My client was charged with violating DeLand’s Noise Ordinance by preaching on the sidewalk.  Upon examining the Noise Ordinance and how it was applied in this case, we determined that the Ordinance is unconstitutional under the First and Fourteenth Amendments.  We filed a Motion To Dismiss and to Declare The Ordinance Unconstitutional.  The City voluntarily dismissed the case before our Motion was heard by the Court.

Orlando, FL:   My client was facing charges in separate cases in Orange County.  One of the charges was Burglary of a Structure in Orlando.  There was a surveillance video which clearly showed that my client was at the scene of the burglary but that he did not enter the unit or take anything from the premises. We file a Motion To Dismiss to challenge that charge, which resulted in a favorable plea offer resolving both of his cases.

Deltona, FL:    My client was charged with several charges including Accessory After The Fact To The Commission of a First Degree Felony (Armed Burglary).  The Co-Defendants were accused of Armed Burglary of a Dwelling and other charges.  Upon taking depositions we determined that the occupant of the residence slammed the door on the Co-Defendants before they came in and that they never actually entered the residence. Since there was no entry, there was no Burglary, and we filed a Motion To Dismiss.  The State was forced to file reduced charges, and ultimately we worked out a very favorable plea deal.

Deltona, FL:    An elderly man’s personal and medical care had been neglected.  The State filed charges of Neglect Of An Elderly Person Or Disabled Adult against both his wife (who was a registered nurse and who lived with him and provided care for him) and my client (his adult son who did not live with or provide care for him). We filed a Motion To Dismiss because it was clear that my client was not a “caregiver” as defined under the law.  He did not provide actual care and he did not assume a duty of care by his words or his actions.  The charge was dismissed.

These examples are for illustration only.  Not every case is appropriate for filing a Motion To Dismiss, and not every Motion To Dismiss results in a dismissal or reduction of the charge.  As a criminal defense lawyer, it is my responsibility to conduct a thorough examination of each case to determine if a Motion To Dismiss or other Defense Motion can help my client.

If you or your loved one has been arrested or charged with a crime, you should contact an experienced criminal defense attorney as soon as possible.  You can contact Attorney Richard “Jake” Jackson at (386) 738-1111 to schedule a consultation in his DeLand office or at a jail or correctional facility.

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