State v. Cramer

383 So. 2d 254 (1980)

STATE of Florida, Appellant,
v.
James CRAMER, Appellee.

No. 79-1354.

District Court of Appeal of Florida, Second District.

April 9, 1980. Rehearing Denied May 15, 1980.

Jim Smith, Atty. Gen., Tallahassee and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellant.

John T. Cook, South Pasadena, for appellee.

RYDER, Judge.

The State appeals dismissal of its information for possession of cocaine, pursuant to Florida Rules of Criminal Procedure 3.190(c)(4). The motion for dismissal alleged that small glass vials of cocaine were found on top of a dresser in a room in which appellant was sleeping. The residence and dresser top were shared by appellant and another. Appellant failed to preserve for appeal any objection to the State's traverse, which added the fact that a gun found next to the cocaine had been brandished by appellant shortly before police arrived on the scene.

We find these facts sufficient to set out a prima facie case to withstand a motion to dismiss. State v. Savarino, 381 So. 2d 734 (Fla.2d DCA 1980). Whether the State can prove constructive possession at trial by refuting all reasonable hypotheses of innocence to this circumstantial evidence must be decided at the close of evidence. On motion to dismiss, the State need show only a prima facie case.

REVERSED and REMANDED for further proceedings.

BOARDMAN, Acting C.J., and CAMPBELL, J., concur.