Opinion
No. 82-776.
December 7, 1982.
Appeal from the Circuit Court, Dade County, John A. Tanksley, J.
Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellant.
Eric B. Feldman and Richard Fineberg, Coral Gables, for appellee.
Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
Pedro Martinez was charged with carrying a concealed firearm in violation of Section 790.01, Florida Statutes (1979). Martinez filed a motion to dismiss pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, which the trial court granted. The State appeals and we reverse.
The "(c)(4) motion" in question was grounded upon an arrest form which stated that the officer observed the weapon in open view. Elsewhere in the arrest form the officer states that the weapon was observed between the center console and driver's seat of the vehicle. It is apparent upon the face of the motion which incorporates the arrest form that an issue is presented which requires resolution by a trier of fact. The motion is not sufficient as a matter of law. Ensor v. State, 403 So.2d 349 (Fla. 1981); State v. Bethea, 409 So.2d 1139 (Fla. 2d DCA 1982); McGraw v. State, 404 So.2d 817 (Fla. 1st DCA 1981).
Reversed and remanded for further proceedings.