Rule 3.190 Pretrial Motions

(a) In General. 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.

(b) Motion to Dismiss; Grounds. 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.

(c) Time for Moving to Dismiss. 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.

(d) Traverse or Demurrer; Rendition of Order.

(1) Evidentiary Hearing. The court may receive evidence on any issue of fact necessary to decide the motion.

(2) Claim of Undisputed Material Facts; Traverse or Demurrer. 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.

(3) Rendition. 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.

(e) Effect of Granting a Motion to Dismiss. 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.

(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 must 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 or Statements.

(1) Grounds. 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.

(2) Contents of Motion. 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.

(3) Hearing. Before hearing evidence, the court must determine if the motion is legally sufficient. If it is not, the motion must be denied. The court may receive evidence on any issue of fact necessary to be decided to rule on the motion.

(4) Time for Filing. 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.

(5) Rendition. 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.

(h) Depositions to Perpetuate Testimony.

(1) Motion. 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.

(2) Transcription. 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.

(3) Notice; Presence of Defendant; Expenses; State Witness Statements. 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.

(4) Presence of Judge or Commissioner. 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.

(5) Rules; Oath, Purpose. 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.

(6) Prohibited Use. 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.

(i) Motion to Expedite. 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.

Repeal Laws 1979, c. 79-69, § 3, provided for the repeal of Rule 3.190(j) “insofar as it is inconsistent with the provisions of this act.” Section 4 of the law provided: “This act shall take effect upon becoming a law, except that section 3 shall take effect only if passed by a two- thirds vote of the membership of each house of the legislature.” The law was passed with the requisite majority vote. The other provisions of the law were designated as F.S.1979 § 918.17 [see, now, § 92.23] which permits video-taping of testimony of certain minors in cases involving sexual battery or child abuse.