How & When To File A Motion To Dismiss In Florida (With Examples)

Motion to dismiss FloridaThere are two main types of cases in Florida law – civil cases and criminal cases. While each matter of law is unique, there are similarities. One of which is how and when to file a motion to dismiss in Florida.

A civil case generally involves conflict between people or institutions when one or both parties cannot resolve the issue without the involvement of the court system. This may include divorce, child custody, child support, or contract disputes.

A criminal case encompasses the upholding of public codes of behavior as exemplified by the court. In a criminal case, the government usually brings charges against a person or an institution who has committed the crime.

In both cases, there is an opportunity to file a motion to dismiss, depending on the situation. We’ll provide an in-depth exploration of what a motion to dismiss is, and when and how to file one with specific examples.

As a side note, if you are interested in finding out how this differs from a motion for summary judgement see our article on motion to dismiss vs motion for summary judgment differences.

What is a motion to dismiss?

In simple terms, a motion to dismiss is a formal request asking the judge to dismiss a charge or a case. It can be filed anytime during the proceedings but is generally filed at the beginning or in response to a lawsuit when a party believes the subject matter is legally invalid.

Only one person generally makes a motion to dismiss. It does not bind the other parties, although it might influence their position on the case. They may refuse to provide a response in favor of the motion, which will create an appearance of impropriety or bad faith.

More often, motions to dismiss are filed under seal by the plaintiff or defendant, providing both sides a chance to file supporting papers before the appearance of the witnesses.

There are three stages to a motion to dismiss process in Florida. In the first stage, the party filing the motion must show valid reasons for the dismissal request. The court will review the documents in the second stage and decide whether to grant the motion. In the final stage, if issues remain, the court will issue a final ruling on whether they will order dismissing of the case.

What is a dismissal hearing?

When a party files a motion to dismiss, they request the court waiver of either part or all of the other party’s case. After the motion is filed, the parties will go to court for a order of dismissal hearing, where they’ll have the opportunity to explain their case and answer any questions asked by the judge.

After listening to both parties, the judge then decides to grant or deny the motion. If the judge decides to dismiss the case, it means the lawsuit is closed. If the complaint fails, the trials continue.

A dismissed case in a criminal lawsuit means the case is closed with no conviction or finding of guilt for the defendant. A court order to dismiss in a criminal case can happen when the appellate or trial court reverses the conviction on the ground of a bad search or arrest. According to case law, the court can also examine the rest of the case, and if need be, decide that there is insufficient evidence for another trial. In a civil case such as a divorce, a dismissal means a court action that closes a case without a person obtaining a divorce.

When can you file a motion to dismiss?

So, in what situation are you able to file a motion to dismiss?

Under the motion to dismiss Florida Rules of Civil Procedure 1.110, an attorney, or pleader can file a motion to dismiss when the complaint is lacking or when there is probable cause of action. If anything besides the complaint and referenced materials are looked at, the motion is treated as a summary judgment. 

In a motion to dismiss, Florida family law situation, a party may file a motion to dismiss for failure to state a cause of action or claim. This is usually in response to a petition or file claimed by the opposing party requesting the court to grant them some form of relief. A motion to dismiss for failure to state a claim essentially means that although facts in the petition or claim were true, the petitioning party will not be entitled to any relief.

You can also file a motion to dismiss complaint in a civil case for various reasons, including:

  • Failure to state a cause
  • Conflict with the complaint
  • Can prove no set of facts
  • Incomplete documentation

In a sample motion to dismiss for criminal charges, the defendant can file a motion to dismiss before or at their arraignment. This is unless the court decides to grant additional time for the case. The court can also entertain a motion to dismiss for reasons under Rule 3.190 – Pretrial Motion, Fla. R. Crim. P. 3.190. These are the reasons stated, along with the criminal motion to dismiss example.

Statute of limitations

Under Section 775.15(2), Florida Statutes, the state of Florida is required to commence the prosecution of the defendant within a certain timeframe as listed below:

  • First-degree murder – within four years after it’s committed.
  • Any other felony – within three years after it’s committed.
  • Misdemeanor of the first degree – within two years after it’s committed.
  • Misdemeanor of the second degree – within one year after it’s committed.

This means that if the defendant is prosecuted for an allegedly committed crime after the timeframe, the defendant has valid grounds to file for a motion to dismiss and has an affirmative defense.  

The statute of limitations example

In 2020, a prosecutor charged a defendant for robbing a bank and found that the alleged crime occurred in 2015. The defendant can file a motion to dismiss based on the statute of limitations for Florida as the alleged crime happened five years ago.

Double jeopardy

The U.S Constitution’s Fifth Amendment states that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” This essentially means the defendant cannot be tried for the same crime twice. If the defendant believes they have already been convicted, punished, or acquitted for the crime that is currently on trial, they can have a double jeopardy defense.

Double jeopardy only applies to criminal cases and not civil cases. This means that although the defendant cannot be tried for the same crime twice, they can still be charged with a civil case without violating the clause.

Double jeopardy example

The defendant who was charged with robbing the bank was tried and acquitted. Although the prosecution is unhappy with the outcome, they are constitutionally not allowed to re-try the defendant for the same crime.


pardon is the forgiveness of a crime and exemption of punishment. The President or state governor usually makes the pardons and are typically to individuals. Pardons can be revoked before they’re delivered but are completely final after being delivered and accepted. There are four types of pardons:

  • Full – unconditional pardons that exonerate the person of all the crime’s punishment.
  • Partial – only relieves the person of some of the crime’s punishment.
  • Absolute – pardons without any conditions.
  • Conditional – pardons with certain conditions to be fulfilled by the person before the pardon takes effect.

Pardons example

The state government gave the defendant who was charged with robbing the bank a conditional pardon for helping the police locate the actual bank robbers.

Exceptions to Florida 3.190(c)(4) motion to dismiss

We have shared a few reasons why a criminal defense attorney may file for a motion to dismiss in a criminal case. However, the most common reason to file for a motion to dismiss in criminal procedure is a Florida C4 motion to dismiss.

Under the Florida Rules of Criminal Procedure 3.190(c)(4), the C4 motion alleges that:

  1. There are no disputed issues of material fact in the case.
  2. The undisputed facts do not amount to a prima facie case of guilt.

The term “prima facie” originates from the Latin language to essentially mean at first sight. A prima facie case is a claim that has sufficient evidence to proceed to the trial court. Failure to establish a prima facie case means the party has failed to present enough evidence to support a verdict in its favor. See State v. Williams, 873 So.2d 602, 604 (Fla. 5th DCA 2004). 

In this motion to dismiss, the defendant alleges that the state and the defense agree that the essential facts involved in the case do not amount to a criminal offense, even if the facts are considered true. The court can then intervene to make a legal ruling on the issue without weighing the evidence. See State v. Kalogeropoulis, 735 So. 2d 507, 508-09 (Fla. 4th DCA 1999).

C4 motion example

A prosecutor has charged a defendant for robbing a bank. The prosecution must prevent valid evidence that the defendant physically entered the bank’s secured area and took the money without authorization. However, the prosecution can only prove the defendant was at his home hours after the robbery, with money in his possession. This evidence alone will not support the charge because the prosecution has failed to establish a prima facie case, providing reasons for the defendant to file for a motion to dismiss.

How to file a motion to dismiss in Florida

In civil cases, Fla. R. Civ. P. 1.140 govern the motion to dismiss filings. There are different rules and requirements to filing a motion to dismiss in Florida Circuit Courts and will depend on the court where the case is pending.  

In general, a motion to dismiss filing must:

  1. Be made in writing unless made during a hearing or trial.
  2. Have a caption containing the court name, case number, style, and designation of the person or institution filing it.
  3. Specify the grounds on which it’s based.
  4. Set forth the relief or order sought.

Other rules and requirements may include the following:

  1. Timing
  2. Other required elements to be included in the motion
  3. Any legal standards
  4. Formatting
  5. Filing and service requirements
  6. Proposed order

A motion to dismiss filed under Rule 3.190 is not a replacement for trial in a criminal case. The state is also not required to establish a pretrial that can meet its burden of proof. The basic requirements for filing a motion to dismiss in a criminal case include:

  1. Be in writing and signed by the party or party’s attorney making the motion.
  2. State the grounds for the case.
  3. A copy of the motion must be served on the adverse party.
  4. Be sworn by the defendant.
  5. Be accompanied by a certificate of service.

In addition to the requirements above, the motion to dismiss must also include this information:

  1. The allegation that the material facts of the case are undisputed.
  2. A description of the undisputed material facts.
  3. A demonstration that the undisputed material facts fail to establish a prima facie case of guilt, or
  4. A demonstration that the facts amount to a valid legal defense.

What is the time to respond to motion to dismiss?

The time for a response to a motion to dismiss in Florida will depend on the court. In general, the opposing party will have approximately two to three weeks to answer to a motion to dismiss. If the party fails to make a counterclaim to a motion to dismiss in Florida promptly, the court can grant a motion to dismiss, and it will be treated as unopposed.

For example, if a motion to dismiss is filed in a district court of appeals, or an appellate court, the opposing party must file a response to the motion within seven days.

Need help filing or responding to a Florida motion to dismiss?

Knowing when or how to file a motion to dismiss in Florida can be a confusing and daunting task. Members of the Cueto Law Group are board-certified in international law, a distinction awarded by the Florida Supreme Court to less than 1% of the Florida Bar’s practicing attorneys.

We’re exceptionally passionate about the law and will go the distance to get the best results our clients deserve. It’s much more than a career to us. It’s our way of life.


Can you dismiss a child custody case?

It is possible to file a motion to dismiss, for failure to state a claim in a child custody case. Once the motion is filed, the court will consider the information provided by both parties and decide whether to grant or deny that motion.

What does it mean when a judge denies a motion to dismiss?

This means the party that filed the motion to dismiss (usually the defendant) has failed to convince the judge to dismiss the case. It does not mean the plaintiff has won the case, but that it will proceed to the next stage of litigation.