State v. Jones

Full title: THE STATE OF FLORIDA, APPELLANT, v. ALFRED JONES, JR., APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Jul 19, 1988

528 So. 2d 126 (Fla. Dist. Ct. App. 1988)

Opinion

No. 87-829.

July 19, 1988.

Appeal from the Circuit Court, Dade County, Alfonso C. Sepe, J.

Robert A. Butterworth, Atty. Gen., and Nancy C. Wear, Asst. Atty. Gen., for appellee.

Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, for appellant.

Before HUBBART, BASKIN and FERGUSON,^_ JJ.

_ Judge Ferguson did not participate in oral argument.

PER CURIAM.

The State of Florida contends that the trial judge erred in granting appellee Jones' sworn motion to dismiss the charge of manslaughter by operating a motor vehicle while intoxicated. We agree and reverse.

The state had filed a traverse specifically denying material facts alleged in the motion to dismiss. Even though, for the purposes of the motion to dismiss the defendant adopted the facts stated in the traverse, Florida Rule of Criminal Procedure 3.190(c)(4) mandates denial. The facts stated in the defendant's sworn motion to dismiss, as modified by the state's traverse, are sufficient to establish a prima facie case of DWI manslaughter. § 316.1931(2)(c), Fla. Stat. (1985); see Baker v. State, 377 So.2d 17 (Fla. 1979); State v. Boom, 490 So.2d 1370 (Fla. 2d DCA 1986).

The order dismissing the information is reversed and the cause is remanded for further proceedings.

Reversed and Remanded.