THE STATE OF FLORIDA, APPELLANT,
v.
JUAN PENA-SALAZAR, APPELLEE
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PER CURIAM.
This is an appeal by the state from an order entered by the trial court dismissing an information under Fla.R.Crim.P. 3.190(c)(4). We have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla. Const.; § 924.07(1), Fla.Stat. (1979).
Our review of the motion to dismiss filed herein reveals that it was legally insuffi- dent under Fla.R.Crim.P. 3.190(c)(4), and, therefore, should have been summarily denied by the trial court without regard to the state’s traverse filed subsequent thereto. The motion fails to demonstrate, as required by the above rule, that the alleged undisputed material facts as set forth in the motion, “do not establish a prima facie case of guilt against the defendant.” Fla.R. Crim.P. 3.190(c)(4). Indeed, the defendant concedes as much on this appeal but urges us to disregard this insufficiency by looking to the state’s traverse for additional undisputed material facts to sustain the order under review. We reject the defendant’s invitation to do so as we have previously held that a legally insufficient motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) “should be summarily denied by the trial court without regard to any traverse or demurrer which may be filed by the state.” State v. Sedlmayer, 375 So. 2d 887, 888 (Fla. 3d DCA 1979); see also State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So. 2d 1044, 1046 (Fla. 1st DCA), cert. denied, 352 So. 2d 175 (Fla.1977).
The order under review is, accordingly, reversed and the cause remanded to the trial court with directions to reinstate the information against the defendant.
Reversed and remanded.
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State v. Terrell, 406 So. 2d 1215 (Fla. 3d DCA 1981)…monstrate, that, as the rule requires, “the undisputed facts do not establish a prima facie case of guilt against the defendant.” The motion was therefore clearly insufficient and should have been summarily denied on its face. State v. Pena-Salazar, 405 So. 2d 254 (Fla. 3d DCA 1981); State v. Sedlmayer, 375 So. 2d 887 (Fla. 3d DCA 1979), and cases cited. Moreover, even the insufficient allegations of the motion were directly contradicted by the state’s traverse, which specifically stated that an appropriate e…
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State v. Williams, 447 So. 2d 1024 (Fla. 3d DCA 1984)…PER CURIAM. The appellee, through counsel, concedes that the trial court erred in granting the defendant’s sworn motion to dismiss the information charging him with second degree grand theft. See State v. Pena-Salazar, 405 So. 2d 254 (Fla. 3d DCA 1981); Quarterman v. State, 401 So. 2d 1159 (Fla. 3d DCA 1981). Following the confession of error the ap-pellee, through counsel, certified a conflict and moved to withdraw. This court took under advisement the motion to withdraw and…
Authorities Cited
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)
- State v. Huggins, 368 So. 2d 119 (Fla. 1st DCA 1979)
- State v. Sedlmayer, 375 So. 2d 887 (Fla. 3d DCA 1979)