Opinion
No. 77-2066.
March 22, 1978.
Appeal from the Circuit Court for Lee County, John H. Shearer, Jr., J.
Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Chief Asst. Public Defender, Bartow, for appellee.
Appellant, the State of Florida, contends that the trial court erred in granting the motion to dismiss filed by appellee/defendant, Johnny Wardlow. We agree.
After appellee filed a motion to dismiss a one-count information charging him with making a false statement for the purpose of obtaining food stamps, in violation of Section 409.325, Florida Statutes (Supp. 1976), the state filed a sworn traverse which specifically denied the factual allegations contained in the motion. Fla.R.Crim.P. 3.190(d) states in pertinent part: "A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the state files a traverse which denies under oath a material fact alleged in the motion to dismiss." Accordingly, the trial court should have denied the motion, and it was error to dismiss the information. See State v. News-Press Publishing Co., 338 So.2d 1313 (Fla. 2d DCA 1976).
We reverse the trial court's order and remand the case for further proceedings consistent with this opinion.
REVERSED and REMANDED.
BOARDMAN, C.J., and HOBSON and GRIMES, JJ., concur.