Fla. R. Crim. P. 3.190

(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.