State v. Cataldo

539 So. 2d 16, 14 Fla. L. Weekly 593, 1989 Fla. App. LEXIS 1058, 1989 WL 17241

Opinion

PER CURIAM.

The state appeals the trial court’s final order dismissing an information charging the appellee with second degree grand theft in violation of section 812.014, Florida Statutes (1983). In a motion to dismiss brought pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), the appellee essentially contended that the state would be unable to establish that he possessed the requisite intent for the charged offense. The state, however, filed a sworn traverse which specifically denied the facts which the appellee presented in support of this contention. See Fla.R.Crim.P. 3.190(d). Compare State v. Stenza, 453 So.2d 169 (Fla. 2d DCA 1984) (motion to dismiss properly granted where state’s demurrer did not refute facts presented in support of motion to dismiss which established defendant lacked intent). Since the state’s traverse reveals that material facts are in dispute and the record contains sufficient facts from which a jury could reasonably find that the appellee committed the charged offense, we reverse the trial court’s order and remand for further proceedings. See State v. Alvarez, 403 So.2d 1143 (Fla. 2d DCA 1981); State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980).

REVERSED AND REMANDED.

SCHOONOVER, A.C.J., and PARKER and ALTERNBERND, JJ., concur.