State v. Puma

430 So. 2d 515, 1983 Fla. App. LEXIS 19639

Opinion

PER CURIAM.

The State appeals from an order dismissing an information which charged Joseph Puma with maintaining a gambling house.

The State’s sworn traverse specifically denied appellee’s assertion that the State had no evidence of appellee’s ownership or control interest in the gambling premises, such interest or control being one of the essential elements of maintaining a gambling house along with habitual gambling on the premises with defendant’s knowledge and consent. Ferguson v. State, 377 So.2d 709, 710 (Fla.1979); Perlman v. State, 269 So.2d 385, 387 (Fla. 4th DCA 1972). The State also filed a sworn demurrer in response to appellee’s amended motion to dismiss and recited specific instances and conduct of appellee that disputed appellee’s own sworn assertions of minimal contact with the gambling premises. The trial court erred when it granted appellee’s motion to dismiss the information. See Fla.R.Crim.P. 3.190(c)(4) and (d); State v. Oberholtzer, 411 So.2d 376, 377 (Fla. 4th DCA 1982), petition for review denied, 419 So.2d 1199 (Fla.1982); Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 175 (Fla.1977).

Accordingly, we reverse the trial court’s order granting appellee’s motion to dismiss and remand this cause with directions to reinstate the information and for a trial on the merits.

REVERSED and REMANDED with instructions.

GLICKSTEIN, DELL and WALDEN, JJ., concur.