Opinion
No. 86-1637.
April 8, 1987.
Appeal from the Circuit Court, Desoto County, Howard C. Holtzendorf, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellee.
The state appeals the dismissal of an information. We reverse.
Defendant was charged with grand theft. An unsworn motion to dismiss was filed, signed by defendant's attorney. It contained no recitation of facts but alleged (1) the undisputed facts failed to establish a prima facie case against defendant absent alleged statements or confessions made by him, and (2) there was no evidence defendant intended to temporarily or permanently deprive the victim of its property. The motion stated it was filed pursuant to Florida Rule of Criminal Procedure 3.190(b). No evidence was presented at the hearing on the motion. Following argument of counsel the trial court dismissed the information.
On appeal the parties treat the motion as being pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state argues the trial court should have summarily denied the motion because it was unsworn by defendant, citing State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). The defendant contends, however, that the state waived this argument by failing to raise it in the trial court. See Goodmakers v. State, 450 So.2d 888 (Fla. 2d DCA 1984).
Irrespective of whether the state's failure to have raised this point in the trial court constitutes a waiver, we hold that motion was not in compliance with rule 3.190(c)(4) because it did not specifically allege facts upon which the motion was based. Fla.R.Crim.P. 3.190(c)(4). See Upton; State v. Adderly, 411 So.2d 981 (Fla. 3d DCA 1982).
We reverse the trial court's order dismissing the information and remand for further proceedings consistent herewith.
CAMPBELL and SANDERLIN, JJ., concur.