State v. Hayes

453 So. 2d 940, 9 Fla. L. Weekly 1767, 1984 Fla. App. LEXIS 14677

Opinion

PER CURIAM.

Appellee was charged with robbery, as an accessory after the fact, and with violation of probation. Appellee filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state responded with a written traverse specifically denying the matters alleged in the motion to dismiss. From the trial court’s order granting appellee’s motion to dismiss the state has perfected this appeal, contending the court erred in granting the motion to dismiss because 1) the motion was improperly sworn to by counsel on information and belief, and 2) the traverse specifically denied the matters alleged in the motion.

Appellee’s motion to dismiss was insufficient because a motion to dismiss sworn to by counsel upon information and belief, rather than upon actual knowledge, is defective. State v. Martin, 422 So.2d 12 (Fla.2d DCA 1982); State v. Upton, 392 So.2d 1013 (Fla.5th DCA 1981). In addition, the traverse filed by the state contains sufficient specificity to controvert the motion to dismiss and demonstrate issues to be tried.

Accordingly, the order granting appel-lee’s motion to dismiss is reversed.

DOWNEY and GLICKSTEIN, JJ., and GUNTHER, BOBBY W., Associate Judge, concur.