State v. Thompson

399 So. 2d 485 (1981)

The STATE of Florida, Appellant,
v.
David Lee THOMPSON, Appellee.

No. 80-821.

District Court of Appeal of Florida, Third District.

June 9, 1981.

Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellee.

Before HENDRY, SCHWARTZ and BASKIN, JJ.

PER CURIAM.

Appellant, the State of Florida, contends that the trial judge erred in granting the sworn motion to dismiss filed by the appellee, David Lee Thompson, who was charged with one count of first degree murder, two counts of attempted first degree murder, and one count of unlawful possession of a firearm while engaged in a criminal offense.

We agree that the trial judge committed reversible error in granting the motion to dismiss the indictment. The record shows (a) that the sworn motion did not itself demonstrate that "the undisputed facts do not establish a prima facie case against the defendant" so that dismissal would not be justified even if the State had merely demurred or not responded at all to the motion, and (b) that the prosecution filed an appropriate sworn traverse which, under Fla.R.Crim.P. 3.190(d), mandatorily required that the motion be denied. State v. Johnson, 398 So. 2d 500 (Fla. 3d DCA 1981); State v. Horne, 399 So. 2d 49 (Fla. 2d DCA 1981); State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981); State v. Evans, 394 So. 2d 1068 (Fla. 4th DCA 1981); State v. Lawler, 384 So. 2d 1290 (Fla. 5th DCA 1980); State v. Cook, 354 So. 2d 909 (Fla. 2d DCA), cert. dismissed, 359 So. 2d 1212 (Fla. 1978).

The order dismissing the indictment is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.