State v. Cook

354 So. 2d 909 (1978)

STATE of Florida, Appellant,
v.
John COOK, Appellee.

No. 77-784.

District Court of Appeal of Florida, Second District.

January 25, 1978. Rehearing Denied February 22, 1978.

Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.

Allen P. Allweiss, St. Petersburg, for appellee.

HOBSON, Acting Chief Judge.

Appellee/defendant, John Cook, was charged with robbery in violation of Section 812.13, Florida Statutes (1975). Appellee filed a motion to dismiss which included numerous allegations designed to show that the undisputed facts of the incident which resulted in the charge against appellee did not establish a prima facie case. Appellant, State of Florida, filed a traverse to the motion denying each of the allegations made by appellee. After a hearing the trial judge granted the motion to dismiss. We reverse.

Fla.R.Crim.P. 3.190(d) requires denial of a motion to dismiss where "the State files a traverse which denies under oath a material fact alleged in the motion to dismiss." See State v. Wood, 299 So. 2d 111 (Fla. 2d DCA 1974). In the case before us the state strictly complied with the rule, and consequently it was error to dismiss the information.

REVERSED and REMANDED.

SCHEB and OTT, JJ., concur.