Opinion
No. 82-1031.
January 12, 1983. Rehearing Denied February 17, 1983.
Appeal from the Circuit Court, Indian River County, Royce R. Lewis, J.
Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
Robert J. Watson of Law Offices of Bruce M. Wilkinson, P.A., Stuart, for appellee.
The State appeals from an order granting a sworn motion to dismiss. In determining whether the State has shown a prima facie case so as to successfully resist a motion under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, all inferences are resolved against the defendant and the evidence viewed in the light most favorable to the State. State v. Pettis, 397 So.2d 1150 (Fla. 5th DCA 1981). It is to be presumed that the trial court indulged inferences in that manner. Our examination of the motion and the agreed facts (the latter substituting for a state traverse by stipulation of the parties below) lead us to conclude that while we might have permitted the case to go to the jury were that decision ours initially to make, that determination in the present posture of the case would constitute usurpation of the function of the trial court. We therefore affirm.
AFFIRMED.
HERSEY and WALDEN, JJ., concur.
ANSTEAD, J., dissents without opinion.