State v. Graham

492 So. 2d 443, 11 Fla. L. Weekly 1672, 1986 Fla. App. LEXIS 9126

Opinion

SANDERLIN, Judge.

The state appeals a trial court order which granted the defendant’s motion to dismiss an information charging him with escape or attempted escape. We reverse.

After reviewing the record, we find that there is a material issue of fact on whether defendant attempted to escape or whether defendant abandoned his attempt. See §§ 944.40, 777.04(1), and 777.04(5)(a), Fla. Stat. (1983). See also State v. Boom, 490 So.2d 1370 (Fla. 2d DCA 1986); State v. Rogers, 386 So.2d 278 (Fla. 2d DCA 1980).

We hold the trial court erred in resolving these issues on defendant’s motion to dismiss. Rogers. Accordingly, we reverse the trial court’s order, reinstate the information, and remand for further proceedings.

CAMPBELL, A.C.J., and SCHOON-OVER, J., concur.