State v. Bruner

District Court of Appeal of Florida

State v. Bruner

526 So. 2d 1076, 13 Fla. L. Weekly 1493, 1988 Fla. App. LEXIS 2607, 1988 WL 62671

District Court of Appeal of Florida·Decided June 23, 1988·No. No. 87-1451·Published·Cited by 3 cases

Opinion

PER CURIAM.

This is an appeal from an order of dismissal entered pursuant to Rule 3.190(c)(4), Florida Rule of Criminal Procedure.

The motion of appellee seeking the dismissal is little more than legal argument and reference to a previous motion and a deposition. The rule requires “[t]he facts on which such motion is based should be specifically alleged and the motion sworn to.” Appellee merely says what he expects another witness to say and discusses some law relating to circumstantial evidence.

The facts of the case must be specifically alleged, under oath, must be considered in the light most favorable to the prosecution, and must clearly demonstrate that no crime, or one lesser than the one charged, was committed before the court can properly afford relief under the rule. That was not done here so we must quash the order and remand for trial. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981).

ORDER QUASHED, REMANDED.

SHARP, C.J., and DAUKSCH and ORFINGER, JJ., concur.

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PER CURIAM.

This is an appeal from an order of dismissal entered pursuant to Rule 3.190(c)(4), Florida Rule of Criminal Procedure.

The motion of appellee seeking the dismissal is little more than legal argument and reference to a previous motion and a deposition. The rule requires “[t]he facts on which such motion is based should be specifically alleged and the motion sworn to.” Appellee merely says what he expects another witness to say and discusses some law relating to circumstantial evidence.

The facts of the case must be specifically alleged, under oath, must be considered in the light most favorable to the prosecution, and must clearly demonstrate that no crime, or one lesser than the one charged, was committed before the court can properly afford relief under the rule. That was not done here so we must quash the order and remand for trial. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981).

ORDER QUASHED, REMANDED.

SHARP, C.J., and DAUKSCH and ORFINGER, JJ., concur.

State v. Bruner, 526 So. 2d 1076, 13 Fla. L. Weekly 1493, 1988 Fla. App. LEXIS 2607, 1988 WL 62671 (Fla. Ct. App. 1988).

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Opinion

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