State v. Martinez

District Court of Appeal of Florida

State v. Martinez

422 So. 2d 1090, 1982 Fla. App. LEXIS 21793

CourtDistrict Court of Appeal of Florida

DecidedDecember 7, 1982

DocketNo. 82-776

StatusPublished

This text of 422 So. 2d 1090 (State v. Martinez) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Martinez, 422 So. 2d 1090, 1982 Fla. App. LEXIS 21793 (Fla. Ct. App. 1982).

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Opinion

PER CURIAM.

Pedro Martinez was charged with carrying a concealed firearm in violation of Section 790.01, Florida Statutes (1979). Martinez filed a motion to dismiss pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, which the trial court granted. The State appeals and we reverse.

The “(c)(4) motion” in question was grounded upon an arrest form which stated that the officer observed the weapon in open view. Elsewhere in the arrest form the officer states that the weapon was observed between the center console and driver’s seat of the vehicle. It is apparent upon the face of the motion which incorporates the arrest form that an issue is presented which requires resolution by a trier of fact. The motion is not sufficient as a matter of law. Ensor v. State, 403 So.2d 349 (Fla.1981); State v. Bethea, 409 So.2d 1139 (Fla. 2d DCA 1982); McGraw v. State, 404 So.2d 817 (Fla. 1st DCA 1981).

Reversed and remanded for further proceedings.

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PER CURIAM.

Pedro Martinez was charged with carrying a concealed firearm in violation of Section 790.01, Florida Statutes (1979). Martinez filed a motion to dismiss pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, which the trial court granted. The State appeals and we reverse.

The “(c)(4) motion” in question was grounded upon an arrest form which stated that the officer observed the weapon in open view. Elsewhere in the arrest form the officer states that the weapon was observed between the center console and driver’s seat of the vehicle. It is apparent upon the face of the motion which incorporates the arrest form that an issue is presented which requires resolution by a trier of fact. The motion is not sufficient as a matter of law. Ensor v. State, 403 So.2d 349 (Fla.1981); State v. Bethea, 409 So.2d 1139 (Fla. 2d DCA 1982); McGraw v. State, 404 So.2d 817 (Fla. 1st DCA 1981).

Reversed and remanded for further proceedings.

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422 So. 2d 1090, 1982 Fla. App. LEXIS 21793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martinez-fladistctapp-1982.

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