The “Lazy Judge” Trap: Why a State’s Rebuttal Shouldn’t Kill Your Case

By: John Guidry

As a criminal defense attorney, I file lots of motions. The reasons vary, but the basic principle is simple: I am asking the court to do something for me.

• Motion in Limine: “Judge, please stop this witness from giving their opinion.”
• Motion to Suppress: “Judge, please throw out this illegally obtained evidence.”
• Motion to Dismiss: “Judge, the charges should be dropped entirely.”

There are many types of Motions to Dismiss, but the most interesting (and often misunderstood) is the (c)(4) Motion.

Is the State trying to block your dismissal with a technicality?

You need a lawyer who knows the difference between a real dispute and a “swearing match.” Call John today at (407) 423-1117.

What is a (c)(4) Motion to Dismiss?

Technically speaking, a Motion to Dismiss under Rule 3.190(c)(4) says: “Judge, we all agree on the facts. But even if everything the State says is true, it still doesn’t constitute a crime.”

The “Wrong Place, Wrong Time” Example Imagine a shoplifting scenario where multiple people are arrested, but only one person actually stole an item. An overly aggressive loss prevention officer detains the whole group.

• The Motion: We admit the defendant was standing there. We admit he knows the guy who stole. But being near a crime isn’t a crime. Therefore, dismiss the case.
• The Result: If the facts are undisputed, the judge must dismiss it.

The “Traverse” and the Lazy Judge

If the State does not want the case dismissed, they file a document called a “Traverse.” A traverse basically says: “We dispute the facts. We believe he was a lookout because he was looking around.”

The Problem: After practicing criminal defense for over 20 years in Central Florida, I have learned that you can instantly tell the intelligence level of a judge by how they handle a traverse.

• The Lazy Judge: “Well, the State has filed a traverse, so I’m automatically denying your motion. Next case.”
• The Good Judge: Actually reads the traverse to see if the dispute is legally significant.

The filing of a traverse does not automatically give the State a victory. Yet, intellectually lazy judges often treat it that way.

The Case: State v. Cisneros

In the case of State v. Cisneros, 106 So. 3d 42 (Fla. 2d DCA 2013), a judge finally did his job correctly.

• The Charges: Racketeering (RICO), Trafficking in Cocaine, and Conspiracy.
• The Motion: The defense argued there was no evidence that any crime occurred in Hillsborough County (Venue issue).
• The Traverse: The State filed a traverse arguing:
  1. The ringleader’s cell phone was registered in Hillsborough.
  2. The defendant had an address there.
  3. The defendant drove on I-75 (which runs through the county).

A “lazy judge” would have seen the traverse and denied the motion. But this judge looked closer. The Ruling: The judge held that the State’s facts were not “material.” Just because you have a cell phone bill or drive on a highway in a county doesn’t mean you trafficked cocaine in that county. The judge dismissed the charges despite the traverse.

Material Facts vs. “Did Not / Did So”

What most prosecutors fail to realize is that only a traverse involving “material” issues will block a dismissal.

As the Third District Court of Appeal held in State v. Nunez:

“A traverse requires more than a did not, did so swearing match.”

If the State’s rebuttal doesn’t change the core legal issue, the motion should still be granted. It is sad to say, but most prosecutors file traverses that are just “swearing matches,” and even sadder that some judges let them get away with it.

John’s 2025 Update: Don’t Let Them “Copy-Paste” You Into a Trial

In 2025, prosecutors are busier than ever, and “copy-paste” traverses are common. They often file a generic document claiming “facts are in dispute” just to keep the case alive.

We don’t accept that. When we file a Motion to Dismiss, we force the judge to look at the specific facts. If the State’s traverse is weak, legally insufficient, or immaterial (like in Cisneros), we argue aggressively that the “automatic denial” rule doesn’t apply.

If you have a case where the facts don’t add up to a crime, call me at (407) 423-1117. Let’s make the judge do the work.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.