
    Chester Lemar SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3660.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2012.
    Rehearing and Rehearing En Banc Denied Jan. 8, 2013.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    
      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock MeGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Chester Lemar Scott appeals his judgment and sentence for conspiracy to traffic in cocaine over 400 grams, raising a single issue relating to the authority of the Office of Statewide Prosecution (“OSP”) to prosecute him for the offense which, he contends, occurred only in Marion County. He argues that the trial court should have granted his oral motion to dismiss, made at trial, when the State failed to present evidence of any action taken in furtherance of the crime charged in the information outside of Marion County and within the date range charged in the information. We affirm based upon King v. State, 790 So.2d 477 (Fla. 5th DCA 2001), and also write to address the proper procedure for challenging the OSP’s authority to prosecute a case.

In King, our court adopted a broad view of the OSP’s prosecutorial authority, holding that the OSP could prosecute purely local crimes so long as those crimes are related to criminal activity in two or more judicial circuits. Id. at 479-80. The defendant was charged with burglaries committed entirely in Orange County. He sought a reversal of his conviction, arguing that article IV, section 4(b) of the Florida Constitution and section 16.56, Florida Statutes, only authorized the OSP to prosecute crimes committed in two or more judicial circuits. We rejected the argument, explaining:

The policy behind the creation of the Office of Statewide Prosecution — demands that we broadly construe the prosecutorial authority of the statewide prosecutor. Here, it was alleged generally in the information that although the charged offenses were themselves committed in Orange County, that they “occurred in two or more judicial circuits ... as part of a related transaction.” Proof was submitted to the trial judge which convinced him of the truth of this allegation. We believe that the constitutional provision, further developed in the statute, contemplates that even a local offense committed as a part of a multi-district criminal activity, because of this relation, “legally occurred” in two or more judicial districts.

Id. (emphasis added).

At trial in this case, the lead investigator testified that the charges against Scott stemmed from a lengthy multi-juris-dictional investigation involving interviews with people who were a part of the drug trafficking organization, controlled drug buys, wiretaps and surveillance. He specifically testified that many of the intercepted calls associated with Scott’s illegal activities originated in Levy County (which is in a different judicial circuit than Marion County). Under King, this testimony was sufficient to demonstrate the OSP’s authority to prosecute the Marion County crime for which Scott was convicted. Id.

We also agree with the State that Scott’s motion to dismiss was untimely under Florida Rule of Criminal Procedure 3.190(c). That rule provides in pertinent part:

Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for motion to dismiss that is not presented by a motion to dismiss within the time here-inabove provided shall be considered waived.

Id.

As indicated in King, a challenge to the OSP’s authority to prosecute a case is a matter for the judge to determine, if challenged, and not an element of the offense that the state must prove to a jury beyond a reasonable doubt. 790 So.2d at 480 (“[pjroof was submitted to the trial judge which convinced him of the truth of [the] allegation [establishing the OSP’s authority to prosecute]”); see also, Fla. R. Crim. P. 3.190(b) (“All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.”) (emphasis added).

Although at least one court has treated the OSP’s authority to prosecute as an element of the offense to which a defendant can direct a motion for judgment of acquittal at trial, see Ross v. State, 664 So.2d 1004 (Fla. 4th DCA 1995) (citing to Justice Adkins’ special concurrence in State v. Ostergard, 360 So.2d 414 (Fla.1978)), we agree with the Third District that it makes more sense to require that the matter be raised by pretrial motion to dismiss. See State v. Tocher, 84 So.3d 1131, 1136 (Fla. 3d DCA 2012). If the issue is not timely raised by motion to dismiss, it should be “considered waived.” Fla. R. Crim. P. 3.190(c).

AFFIRMED.

BERGER, J., concurs.

SAWAYA, J., concurs in part and dissents in part, with opinion.

SAWAYA, J.,

concurring in part, dissenting in part.

I concur in the majority decision to affirm the conviction. However, I do not agree with the new rule adopted by the majority that requires a criminal defendant to file a motion under rule 3.190(c), Florida Rules of Criminal Procedure, in order to preserve the issue whether the State failed to present sufficient proof to qualify the Office of Statewide Prosecution (OSP) to prosecute the case. As to that part of the opinion, I respectfully dissent.

The OSP derives its authority to prosecute cases from article IV of the Florida Constitution and section 16.56, Florida Statutes. The OSP will have concurrent jurisdiction to prosecute an enumerated offense “only when any such offense is occurring, or has occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits.” § 16.56(l)(a)15., Fla. Stat. (2011). This statute also requires that “[ijnformations or indictments charging such offenses shall contain general allegations stating the judicial circuits and counties in which crimes are alleged to have occurred or the judicial circuits and counties in which crimes affecting such circuits or counties are alleged to have been connected with an organized criminal conspiracy.” Id. Hence there is a pleading requirement and a proof requirement. The State has the burden of presenting evidence to establish that the crime qualifies for prosecution by the OSP. See State v. Tacher, 84 So.3d 1131, 1133-34 (Fla. 3d DCA 2012) (specifically noting that: 1) “The charging document (information) alleges multi-county criminal activity”; 2) “There is evidence to support the exercise of the OSP’s authority under section 16.56(l)(a)”; and 3) “The OSP satisfied its burden under the first theory.”); King v. State, 790 So.2d 477, 479-80 (Fla. 5th DCA 2001) (“Here, it was alleged generally in the information that although the charged offenses were themselves committed in Orange County, that they ‘occurred in two or more judicial circuits ... as part of a related transaction.’ Proof was submitted to the trial judge which convinced him of the truth of this allegation.”), cert. denied, 537 U.S. 961, 123 S.Ct. 394, 154 L.Ed.2d 314 (2002).

If defective or improper pleading of the statutory allegations is the issue, I would agree with the majority that the pleading failure should be brought to the attention of the trial court via a timely motion under rule 3.190(c), Florida Rules of Criminal Procedure. Ford v. State, 802 So.2d 1121, 1130 (Fla.2001) (“Any inquiry concerning the technical propriety of the indictment should have been raised prior to trial at which time any deficiency could have been cured.”), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002); State v. Perkins, 977 So.2d 643, 645 (Fla. 5th DCA) (“It has long been Florida law that technical deficiencies or defects in form may be waived by failure to make timely objection or by a plea to the merits.”), review denied, 991 So.2d 387 (Fla.2008); McMillan v. State, 832 So.2d 946, 948 (Fla. 5th DCA 2002) (“Where the charging document is merely imperfect or imprecise, the failure to challenge it by motion to dismiss waives defect.”); see also Fla. R. Crim P. 3.140(o). But see Moseley v. State, 7 So.3d 550, 552 (Fla. 5th DCA) (“However, 'technical deficiencies in a charging instrument are waived if the defendant does not raise them before the state rests its case.’ ” (quoting Castillo v. State, 929 So.2d 1180, 1181 (Fla. 4th DCA 2006))), review denied, 19 So.3d 311 (Fla.2009).

However, there will be cases, and the instant case is an example, where the only allegation is that the State failed to meet its burden of presenting evidence to establish that the crimes the defendant was accused of committing qualified under the statute for prosecution by the OSP. The rule adopted by the majority provides that unless this failure of proof is alleged in a motion under rule 3.190(c), it is waived. I strongly disagree. A defendant should hot be forced to file a motion to require the State to prove that which it must prove in the first instance. The majority attempts to justify this new rule by holding that the statutory proof requirement is not an element of the charged crime. I do not think that matters. The burden is on the State to prove the authority of the OSP and the defendant should not be required to file a motion in order to make the State meet that burden and preserve the right to have that issue reviewed by an appellate court.

The court in Tacher, which is a decision cited by the majority in support of its new rule, did not say that the defendant was required to file a pretrial motion to dismiss. Rather, the court stated, “We suggest that such a motion be filed as a sworn motion to dismiss, similar to those filed under rule 3.190(c)(4), Florida Rules of Criminal Procedure.... ” Tacher, 84 So.3d at 1136 (emphasis added). Notably absent from that suggestion is any mention of waiver or any provision that makes the filing of such a motion mandatory. Tacher simply says that if the defendant files a motion, the issue may be resolved prior to trial, but if he or she does not, the issue will be decided at trial. While the court in Tacher may have made a good suggestion, the majority in the instant case has carried that suggestion too far by turning it into a mandatory rule that requires a defendant to file a motion under rule 3.190(c) or waive his or her right to appellate review of the issue. Although resolving the issue before trial in that manner may be preferable, the onus should be on the State to undertake its obligation to meet its burden and the deadline for the State to do so is the trial. If the State fails, the defendant must say so at the close of the State’s case or risk waiver. The defendant should not have to take that risk before the State has undertaken to meet its burden. 
      
      . § 893.135(5), Fla. Stat. (2008).
     
      
      . Article IV of the Florida Constitution establishes the OSP as a prosecuting officer of the State of Florida. Article IV, section 4(b), provides in pertinent part:
      There is created in the office of the attorney general the position of statewide prosecutor. The statewide prosecutor shall have concurrent jurisdiction with the state attorneys to prosecute violations of criminal laws occurring or having occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is affecting or has affected two or more judicial circuits as provided by general law.
     
      
      . Section 16.56, Florida Statutes (2011), provides in relevant part:
      (1) There is created in the Department of Legal Affairs an Office of Statewide Prosecution ... The office may:
      (a) Investigate and prosecute the offenses of:
      
        
      
      2. Any crime involving narcotic or other dangerous drugs;
      
        
      
      or any attempt, solicitation, or conspiracy to commit any of the crimes specifically enumerated above. The office shall have such power only when any such offense is occurring, or'has occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits. In-formations or indictments charging such offenses shall contain general allegations stating the judicial circuits and counties in which crimes are alleged to have occurred or the judicial circuits and counties in which crimes affecting such circuits or counties are alleged to have been connected with an organized criminal conspiracy.
     
      
      . On rehearing, the panel certified an issue related to its holding as one of exceptional importance that should be addressed by the supreme court, and also noted a possible conflict with Winter v. State, 781 So.2d 1111 (Fla. 1st DCA 2001), disapproved on other grounds, Carbajal v. State, 75 So.3d 258, 260 (Fla.2011). The supreme court ultimately dismissed review of King as improvidently granted (by unpublished order). King v. State, 820 So.2d 941 (Fla.2002).
     
      
      . We note that if the facts supporting OSP's authority are disputed, a pretrial evidentiary hearing may be required. Although the Florida Rules of Criminal Procedure do not expressly provide for evidentiary hearings on motions to dismiss, the supreme court has authorized the procedure. See Dennis v. State, 51 So.3d 456 (Fla.2010) (holding that a defendant claiming immunity pursuant to section 776.032(1), Florida Statutes, must file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) and requiring trial court to address the motion at a pretrial evidentiary hearing).
     