Getting your Case Dismissed

Just what does it mean to have your case dismissed?

When defending his client against the State, a smart criminal defense attorney sees the fight like a game of chess; he strives to win the case in as few moves as possible.

However, to do so, the lawyer, like a soldier going to war, must maintain an arsenal of effective weaponry.

One of the most powerful, but for some reason, least used weapons at a criminal defense lawyer’s disposal is a motion to dismiss the case.

A well-prepared motion to dismiss can end a case just days after the State files charges, or even days after arrest, saving the defendant, from not only unjust conviction and time in prison, but also from many months of uncertainty about his future liberty, and the anxiety that attends such a state of af-fairs.

In filing a motion to dismiss, the defense is telling the judge that, for one reason or another, the State has no legal right to prosecute the defendant, and so the case should be thrown out of court.

While, generally speaking, judges tend to be biased in favor of the State, they sometimes favor well-argued motions to dismiss for one reason: it removes another case from the court’s busy, often over-burdened calendar.

You might be surprised to learn that, sometimes, the assistant state attorney in charge of prosecuting the case secretly welcomes a motion to dismiss; indeed, there are times when the State will freely concede the defendant’s motion is correct, and drop the charges before the judge has ruled on the motion. Why? Because a solid motion to dismiss can appeal to the prosecutor’s conscience, or alter-natively, it can give the prosecutor the justification he needs to decrease his own heavy caseload.

Grounds for motions for dismiss come in a variety of shapes and sizes. Here are a few:

One kind of motion to dismiss compares the State’s allegations against the legal requirements for conviction of the defendant of the crime.

For example, let us say a person is charged with possession of marijuana based on a police officer’s claim that the defendant was found sitting alone on a bus bench and there was a baggie of marijuana next to him.

Because the Florida law states the mere proximity to drugs is not the same thing as “possession,” the charge against the defendant is legally invalid, and the case should be thrown out.

Another example is where the supposed commission of the crime occurred two or three years before the State filed the charges.

Such prosecution is a violation of the “statute of limitations,” the law that says that if the State is go-ing to charge someone with a crime, the State must do so within a reasonable, legally defined amount of time after the alleged event.

So if the State waits too long to file charges, the criminal defense lawyer can confidently move the Court to dismiss the case. (By the way, surprisingly, this happens more often than many people imag-ine.)

Another example of grounds to file a motion to dismiss is something called “double jeopardy.” The United States Constitution, and the Florida Constitution, both prohibit the government from prosecut-ing a person more than once for the same crime, or the same events that were the basis of a person’s prior criminal conviction.

I mentioned before that a motion to dismiss can lead to closing a case days after arrest. However, sometimes a criminal defense lawyer discovers grounds to dismiss his client’s case with the discovery of additional evidence, months later.

So seeing his battle with the State’s prosecution as a chess game, have your lawyer file a strong mo-tion to dismiss and announce to everyone in court: “checkmate”.

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