State v. Fox

404 So. 2d 799

Opinion

404 So.2d 799 (1981)

The STATE of Florida, Appellant,
v.
Jan Anthony FOX, Appellee.

No. 80-1678.

District Court of Appeal of Florida, Third District.

October 6, 1981.

Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and Deborah Whisnant, Asst. Public Defender, for appellee.

Before SCHWARTZ, NESBITT and FERGUSON, JJ.

SCHWARTZ, Judge.

After conducting the hearing on the defendant's sworn motions to dismiss we required in Fox v. State, 384 So.2d 226 (Fla.3d DCA 1980), review denied, 392 So.2d 1379 (Fla. 1980), the trial judge granted the motions. This was error. The conflicting and inherently suspect nature of the defendant's multiple explanations of his possession of recently stolen property, together with the fact that he was found with additional stolen items, presented what was clearly a jury question of his guilt. Section 812.022(2), Florida Statutes (1979); State v. Graham, 238 So.2d 618 (Fla. 1970); McWhirter v. State, 325 So.2d 463 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 602 (Fla. 1976); Burroughs v. State, 221 So.2d 159 (Fla.2d DCA 1969); Borghese v. State, 158 So.2d 785 (Fla.3d DCA 1963); compare, R.A.L. v. State, 402 So.2d 1337 (Fla.3d DCA 1981); A.R. v. State, 393 So.2d 1174 (Fla.3d DCA 1981).

Reversed.