text:
    STATE of Florida, Appellant, v. Farrah FITZGERALD, Appellee.
    No. 2D10-1689.
    District Court of Appeal of Florida, Second District.
    May 18, 2011.

      Pamela J. Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant.
    J. Kevin Hayslett, Clearwater, for Ap-pellee.
   NORTHCUTT, Judge.

The State appeals the dismissal of its charge against Farrah Fitzgerald for felony driving under the influence. The circuit court dismissed the case after determining that the State could not prove that Fitzgerald was in actual physical control of a vehicle at the time of the alleged offense. We reverse because the State may prove the charge with evidence that the defendant was physically in a vehicle with the capability to operate it, regardless of whether she was actually operating it at the time.

A police officer found Fitzgerald sitting, intoxicated, in the driver’s seat of a parked car. She readily produced the car keys upon the officer’s request. She was charged with driving under the influence, a third-degree felony pursuant to section 316.193(2)(b)(l), Florida Statutes (2008), because she allegedly has two prior DUI convictions. She filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190. The court held a hearing on both the motion to dismiss and a motion to suppress. After hearing the arresting officer’s testimony and the parties’ arguments, the circuit court granted the motion to dismiss.

At the hearing, the officer testified that he saw a Pontiac stopped in an intersection in Largo at around midnight. The car’s lights were on; the officer testified that he saw “the lights on pointing towards residential areas,” so we assume he was referring to the headlights rather than the interior lights. The officer saw a, pair of legs hanging out of an open passenger door, which caused him to be concerned. The officer stopped and approached, observing that the car’s engine was not running. As he walked by the passenger side, the officer observed that a male passenger’s legs were hanging out of his side of the car, and he saw that the passenger was breathing and that his hands were empty. The officer then heard a voice say either “I’m not driving” or “I wasn’t driving.” The voice came from the driver’s side, and the officer then observed Fitzgerald sitting in the driver’s seat.

The officer testified that he looked over to the driver’s side and saw the car keys in Fitzgerald’s right hand. On cross-examination, the officer explained that he asked her for the keys and that she produced them in her right hand. His “assumption was that they were always in her right hand because [he] never saw them any other place.” But he agreed that he did not know if the keys were in her hand the whole time or if they came from somewhere else.

The officer then approached the driver’s door, which was also open, and engaged Fitzgerald. He observed that her speech was slurred and that she smelled of alcohol. He conducted a DUI investigation and ultimately arrested Fitzgerald. Her breath tests revealed alcohol levels of .201 and .218, which exceeded the .08 threshold established by section 316.193(l)(c).

Section 316.193(1) makes it a crime for a person to be “driving or in actual physical control of a vehicle within this state” while under the influence of alcohol or drugs. Fitzgerald was not driving the car, so the State proceeded on a theory of actual physical control. To prove this element, “the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.” Fla. Std. Jury Instr. (Crim.) 28.1.

In this case, Fitzgerald was physically in the vehicle. The question here is whether, as a matter of law, the undisputed evidence fails to show that she had the capability of operating the vehicle. To survive a motion to dismiss, the State must show a prima facie case, with all inferences resolved in the State’s favor. State v. James, 928 So.2d 1269, 1271 (Fla. 2d DCA 2006). Our review is de novo. Id. at 1270.

In some cases, DUI convictions have turned on inferences from circumstantial evidence that the defendants had driven motor vehicles to the locations at which they were arrested. See, e.g., State v. Boynton, 556 So.2d 428 (Fla. 4th DCA 1989). Here, the circuit court was skeptical of that approach because there was a passenger present, leading to a possible inference that the passenger drove to the current location and then switched seats with Fitzgerald. We note that a court should not grant a motion to dismiss “simply because it concludes that the case will not survive a motion for judgment of acquittal at trial.” State v. Jaramillo, 951 So.2d 97, 99 (Fla. 2d DCA 2007). But we see another problem with the circuit court’s analysis.

The circuit court’s focus on whether the State could prove that Fitzgerald drove the car to the location of her encounter with the officer overlooked that the statute is just as concerned about the driver’s ability to drive the car from there. The legislature defined the crime to include not only driving but also actual physical control “to enable the drunken driver to be apprehended before he strikes.” Griffin v. State, 457 So.2d 1070, 1072 (Fla. 2d DCA 1984) (quoting Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975)). This court agreed with the conclusions of the Oklahoma court:

[A]n intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving the vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away. He therefore had “actual physical control” of the vehicle within the meaning of the statute.

Id. (quoting Hughes, 535 P.2d at 1024).

The Florida jury instruction speaks in terms of “capability to operate the vehicle.” Capability means “practical ability.” Webster’s New World College Dictionary 216 (4th ed. 2002). In analyzing the necessary proof of this element, the First District reviewed cases from Alabama, where the courts review the totality of the circumstances to determine whether someone is in actual physical control. Jones v. State, 510 So.2d 1147, 1148 (Fla. 1st DCA 1987) (citing Cagle v. City of Gadsden, 495 So.2d 1144 (Ala.1986)). Jones noted that Alabama finds the following factors to be relevant: active or constructive possession of the ignition key, position in the driver’s seat, and a vehicle that is operable. 510 So.2d at 1148. In Florida, a vehicle’s inop-erability is a defense rather than an element. Id. at 1149.

Here, Fitzgerald was sitting in the driver’s seat, and she readily produced the car keys. There was no evidence that she needed to search for the keys or that she retrieved them from the passenger. We add to this the additional facts that the car was stopped in an intersection with its lights on. As Griffin noted, a legitimate inference to be drawn is that Fitzgerald placed herself behind the wheel and at any time could have started the car and driven away. 457 So.2d at 1072.

This interpretation was followed in State, Department of Highway Safety & Motor Vehicles v. Prue, 701 So.2d 637 (Fla. 2d DCA 1997), which reviewed the issue of actual physical control in the context of a driver’s license suspension. In holding that competent evidence supported the hearing officer’s finding that Prue was in actual physical control, we relied on evidence showing that “the keys to the vehicle were either in the ignition or near enough for Prue to use them to start the vehicle and drive away.” Id. at 638. Likewise, here, the keys were close enough for Fitzgerald to use them to start the car and drive away. See Baltrus v. State, 571 So.2d 75 (Fla. 4th DCA 1990) (finding evidence sufficient to defeat motion to dismiss when defendant was slumped over steering wheel in front seat of car in parking lot although keys were in his hand rather than in the ignition); Fieselman v. State, 537 So.2d 603 (Fla. 3d DCA 1988) (finding evidence sufficient to defeat motion to dismiss; although defendant was lying down on front seat of car in parking lot, keys were in the ignition and lights were on); see also Lamore v. State, 983 So.2d 665, 669 & n. 5 (Fla. 5th DCA 2008) (describing offense as one of general intent that punishes the intentional act of “placing oneself in actual physical control of a motor vehicle,” which furthers the legitimate governmental interest of “protecting the public from the danger of an impaired person who places himself behind the wheel and could at any time and with little difficulty start the car and drive away”).

The facts before the circuit court satisfied the State’s burden to prima facie demonstrate that Fitzgerald was in actual physical control of a motor vehicle while under the influence of alcohol. Accordingly, we reverse the dismissal of this charge and remand for further proceedings.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Eric M. SHELDEN, Appellant, v. Kim M. SHELDEN, a/k/a Kim Mutschler, Appellee.
    No. 2D10-832.
    District Court of Appeal of Florida, Second District.
    May 20, 2011.

      Ingrid Anderson, Clearwater, for Appellant.
    Paul A. Gionis of Bilirakis Law Group, LLC, Holiday, for Appellee.
   ALTENBERND, Judge.

Eric M. Shelden appeals an order denying his motion seeking a modification of the alimony that he pays to his former wife, Kim Mutschler. There are several irregularities in this proceeding that require that the order on appeal be reversed and remanded for further proceedings.

Mr. Shelden and Ms. Mutschler obtained a final judgment of dissolution of marriage in December 1996. We assume that they obtained a divorce using a form petition comparable to Florida Family Law Rules of Procedure Form 12.901(a) and that the petition attached a marital settlement agreement. We are obliged to make this assumption because it appears that the clerk of the circuit court in Pinellas County may have lost this court file. Our record begins with a photocopy of the recorded final judgment. That judgment references a “private mediation agreement” that the parties entered into on October 23, 1996, which apparently was attached to the petition for dissolution but not attached to the final judgment. The record contained no copy of the private mediation agreement when the trial court entered the order on appeal. There is a copy of a private mediation agreement attached to a motion for civil contempt filed on January 27, 2010, which is probably an accurate copy of the original agreement, but the trial court has made no decision that it is an accurate copy.

The private mediation agreement in our record requires Mr. Shelden to pay permanent periodic alimony in the amount of $500 per month and contains no indication that this amount cannot be modified. It requires that he secure the alimony obligation with a life insurance policy in the amount of $60,000.

In October 2008, Mr. Shelden filed a pro se motion for modification of alimony. In the motion he explained that there had been a substantial change in circumstances in that he lost his job in the economic downturn and had been unemployed for six months. He also claimed that Ms. Mutschler, although not remarried, had been in a permanent supportive relationship with another man for several years. He sought a reduction in alimony and an elimination of the life insurance requirement. Ms. Mutschler filed a pro se response to this motion. When the matter was not resolved in mediation, the trial court referred the case to a general magistrate.

The general magistrate held a hearing in the case in October 2009. He was confronted with two pro se litigants and a “duplicate” court file that was out of order and missing many filings, including the critical mediation agreement. As is often the case, the pro se litigants tended to focus on issues that were important to them but not necessarily important to the general magistrate in making his decision. As a result, the hearing was not long enough to cover the essential issues, and it is probably fair to suggest that everyone left the hearing dissatisfied with the process. Mr. Shelden filed numerous documents in support of his motion and explained that he had found a new job, but it paid less than $500 per week.

The general magistrate filed a report and recommendation that concluded that Mr. Shelden had failed to prove that Ms. Mutschler’s relationship with the other man was sufficient to warrant a modification in the alimony. However, the report did find that there had been a substantial change in circumstances as to Mr. Shel-den’s income. In 2009, he was making about half the income that he had made when the parties divorced in 1996. Meanwhile, Ms. Mutschler’s pay had increased from $7 per hour to $17 per hour. Acknowledging that the mediation agreement was not in the record, the magistrate concluded that the parties anticipated Ms. Mutschler’s increase in pay because Mr. Shelden had paid her rehabilitative alimony. Noting that Mr. Shelden was current on his alimony and was receiving financial support from another woman, the general magistrate concluded that Mr. Shelden’s substantial reduction in income was not, standing alone, a basis to reduce the alimony in this case because Mr. Shelden’s financial affidavit showed a monthly surplus of $15.97. The report and recommendation contains no resolution of the life insurance issue.

Mr. Shelden filed extensive exceptions to the report. The trial court overruled the exceptions and entered an order in February 2010 confirming the report and recommendation. Oddly, the order contains language purporting to dissolve the marriage and indicating that this order is the final order of dissolution. Mr. Shelden appealed this order. Both parties obtained counsel to assist them in this appeal.

As an initial matter, we conclude that the order must be reversed to remove the language that seemingly grants the parties a second divorce. Likewise, we conclude that the issue of the life insurance should be addressed on remand.

Concerning the denial of the modification, Ms. Mutschler’s attorney on appeal argues that the general magistrate reached the correct result because the alimony set by the private mediation agreement was nonmodifiable. Not only did Ms. Mutschler fail to make this argument in the trial court, but we have no reliable copy of the private mediation agreement in the official record or in evidence. See N.L.E. v. Dep’t of Children & Family Servs., 970 So.2d 486, 489 (Fla. 2d DCA 2007) (stating that generally appellate courts will not consider a new issue on appeal); Sheldon v. Tiernan, 147 So.2d 593, 593 (Fla. 2d DCA 1962) (“Appellate review is ... confined to the record on appeal.”). The copy attached to the January 2010 motion does not contain the type of express language required to obtain a waiver of the right to modify alimony. See Tapp v. Tapp, 887 So.2d 442, 444 (Fla. 2d DCA 2004) (noting that parties to a marriage may waive the right to modify alimony only through clear and unambiguous language).

Mr. Shelden argues that the trial court erred in confirming the report and recommendation and that he was denied due process at the hearing before the general magistrate. An appellate court generally reviews a trial court’s decision to deny such a modification under the abuse of discretion standard, Farley v. Farley, 858 So.2d 1170, 1172 (Fla. 2d DCA 2003), and both the trial court and this court are bound by the general magistrate’s findings of fact unless they are not supported by competent, substantial evidence or are clearly erroneous, Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004).

We are very hesitant to rule that a general magistrate violates due process in this type of hearing involving pro se litigants. Certainly, the general magistrate in this case was attempting to work with the two litigants to understand their claims and to resolve them within the ninety minutes allotted for the hearing. Neither party made any legal objections to the procedures used at the hearing. Accordingly, we reject Mr. Shelden’s claim that he was denied due process.

However, we are persuaded by Mr. Shelden’s related claim that the trial court’s order is not supported by competent, substantial evidence. Not only was the court file missing, but the hearing was conducted exclusively by the general magistrate. He placed both litigants under oath and then proceeded to ask them questions as he saw fit. The general magistrate did not permit Mr. Shelden, who had the burden of proof on these issues, to call or examine any witnesses or to cross-examine any of his former wife’s answers to the general magistrate’s questions — albeit, Mr. Shelden never asked to do so. Much of the hearing consisted of a discussion of the innumerable documents that Mr. Shel-den had filed, some but not all of which were evidentiary in nature. Frankly, it is not entirely clear that any of the documents were ever placed into evidence, but the general magistrate seems to have assumed that they were all in evidence.

The record clearly supports the general magistrate’s finding that Mr. Shelden’s income had suffered a permanent and substantial reduction and that Ms. Mut-schler’s had significantly increased. The record also supports his findings concerning the absence of a supportive relationship between Ms. Mutschler and the other man. However, the evidence in the record does not appear to support his finding that the parties anticipated Ms. Mutschler’s significant increase of income when they entered into the private mediation agreement because she received rehabilitative alimony. Assuming the copy of the private mediation agreement is accurate, it reflects rehabilitative alimony of $200 for only a few months with no explanation of the plan of rehabilitation. Moreover, the general magistrate relied exclusively on Mr. Shelden’s financial affidavit to conclude that he had a monthly surplus of $15.97 after paying the alimony, when the affidavit contained no expenses for housing, ear maintenance, clothing, grooming, entertainment, or gifts and estimated his medical and dental expense as $7.78 per month because he had no medical insurance. The assumption that Mr. Shelden could and should rely on his “girlfriend” for all of these expenses is simply not supported by competent, substantial evidence. After a review of the documents that the general magistrate received from Mr. Shelden, we conclude that the finding he had a surplus of $15.97 per month is clearly erroneous.

We conclude that the trial court erred in accepting these findings of fact and that the errors affected the court’s discretionary decision to deny a modification. On remand, the trial court need not revisit the issue of the alleged supportive relationship, but it should reconsider whether there have been substantial permanent, unexpected changes in the financial circumstances of the parties that might warrant some change in Mr. Shelden’s alimony obligation.

Reversed and remanded.

DAVIS and KHOUZAM, JJ., Concur.


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant, v. Johnny YARN, Appellee.
    No. 2D10-2915.
    District Court of Appeal of Florida, Second District.
    May 20, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellee.
   VILLANTI, Judge.

The State appeals the trial court’s order dismissing count II of the information filed against Johnny Yarn, which charged him with carrying a concealed firearm. Because the facts contained in the State’s traverse raised inferences sufficient to support a prima facie case of guilt, we reverse and remand for further proceedings.

The State’s probable cause affidavit against Yarn asserted that at approximately 10 p.m. on July 24, 2009, both street and aviation officers were on patrol in a high-crime area of Manatee County looking for an individual who had multiple warrants out for his arrest. As Deputy Cruz drove past a house, he saw a group of people standing in the front yard and spilling out into the street. Deputy Denmark was a short distance away in another patrol car. When Cruz shined his spotlight on the group, both he and Denmark saw an individual, later identified as Yarn, wearing all black clothing and holding a black “memorial Rob-D” T-shirt in his hand. Yarn turned and fled as soon as he saw the deputies.

As Yarn ran behind the house, Cruz and Denmark lost sight of him. However, aviation officers tracked Yarn as he ran to and crouched behind a nearby church. As the aviation officers watched, Yarn stood up, came out from behind the church, and began walking down the street while talking on a cell phone. At that point, Yarn no longer had the black T-shirt in his hand.

Patrol officers then made contact with Yarn and detained him. Yarn admitted that he ran when he saw Cruz and Denmark and admitted that he had been carrying a T-shirt when he fled. He also admitted that he had “dropped” a firearm as he ran and lost the T-shirt he was carrying. However, he denied knowing where he had dropped or lost either item. When officers went behind the church where Yarn had been seen crouching, they found two cigar tubes containing 103 pieces of crack cocaine and a firearm lying under a black “memorial Rob-D” T-shirt. The shirt appeared to be new and appeared to have been recently placed in that location. Based on these facts, the State charged Yarn with one count of possession of cocaine with intent to sell within 1000 feet of a place of worship and one count of carrying a concealed firearm.

Yarn subsequently filed a motion to dismiss the concealed firearm charge pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). In that motion, Yarn alleged that none of the deputies ever saw a gun or “any indication of a gun” on Yarn either before, during, or after his flight. Yarn admitted that he told police while being detained that “[w]hen I ran behind the house I dropped something. It was a .380 handgun.” However, Yarn also alleged that “[t]he State has no evidence [as] to how or in what manner the firearm had been carried.”

In response to Yarn’s motion to dismiss, the State filed a traverse in which it asserted that Deputies Cruz and Denmark would testify under oath that they clearly saw Yarn illuminated with Cruz’s spotlight before Yarn fled and that neither of them saw him carrying a firearm in a plain or open manner. Despite the State’s traverse, the trial court granted Yarn’s motion to dismiss the carrying a concealed firearm count, specifically finding that the State had failed to establish that Yarn had concealed the firearm at the time he possessed it. The State now seeks review of this ruling.

Rule 3.190(c)(4) provides for dismissal of a charge against a defendant when “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” “Under this rule it is the defendant’s burden to ... demonstrate that no prima facie case exists upon the facts set forth in detail in the motion.” State v. Kalogeropolous, 758 So.2d 110, 111 (Fla.2000).

When faced with a motion to dismiss, the State may proceed in two ways. First, the State may concede that the facts are undisputed but may argue that inferences from those undisputed facts could nevertheless support a finding of guilt. See, e.g., State v. Williams, 873 So.2d 602 (Fla. 5th DCA 2004) (reversing order granting a motion to dismiss even though the State stipulated to a statement of undisputed facts because reasonable inferences from those facts could support a finding of guilt).

Alternatively, if the State disputes any of the facts alleged in the defendant’s motion or if it believes there are additional material facts not alleged in the defendant’s motion, the State may file a sworn traverse. See Fla. R. Crim. P. 3.190(d); Kalogeropolous, 758 So.2d at 111-12. In its traverse, the State need not adduce the evidence necessary to prove its case beyond a reasonable doubt. See State v. Gay, 960 So.2d 864, 867 (Fla. 2d DCA 2007). Instead, it must bring forward facts sufficient to show only the “ ‘barest prima facie case.’” State v. Dickerson, 811 So.2d 744, 746 (Fla. 2d DCA 2002) (quoting State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984)). To meet its burden, “the State may rely on circumstantial evidence and all inferences arising therefrom that are favorable to the State.” Dickerson, 811 So.2d at 746; see also Gay, 960 So.2d at 867; Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003). And to establish the “barest prima facie case,” the State must show only that a reasonable jury could find the defendant guilty of the charged crime under the most favorable construction of the evidence. See State v. Shuler, 988 So.2d 1230, 1231 (Fla. 5th DCA 2008). Only when there is no construction of the undisputed facts and inferences therefrom that would allow a guilty verdict to be rendered should a motion to dismiss be granted. See Dorelus v. State, 747 So.2d 368, 373 (Fla.1999); State v. Horton, 442 So.2d 408, 409 (Fla. 2d DCA 1983). If the State files a sworn traverse that establishes a prima facie case of guilt, the motion to dismiss must be denied. See Fla. R. Crim. P. 3.190(d); see also Kalogeropolous, 758 So.2d at 112; Dickerson, 811 So.2d at 746.

In the context of a charge of carrying a concealed firearm, the critical question is whether the firearm was “carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” § 790.001(2), Fla. Stat. (2009). The critical issue is whether the firearm is concealed from the “ ‘ordinary observation’ ” of others, and “ ‘[a]bso-lute invisibility to other persons is not indispensable to concealment.’ ” Ensor v. State, 403 So.2d 349, 354 (Fla.1981) (quoting Mularkey v. State, 201 Wis. 429, 230 N.W. 76, 77 (1930)). In determining whether a firearm was concealed, “the observations of the police officer will not necessarily be dispositive.” Dorelus, 747 So.2d at 372. Instead, the court must consider all of the circumstances and all of the inferences involved in the individual case.

For example, in Carpenter v. State, 593 So.2d 606, 607 (Fla. 5th DCA 1992), the defendant was stopped for a possible DUI, and there was a handgun on the front seat beside her. The officer who stopped Carpenter did not immediately see the gun because it was dark where the stop occurred and Carpenter was quite heavy. As the court noted, “[h]er body may have obscured the officer’s view of the gun.” Id. Despite the fact that the officer did not immediately see the gun, the undisputed facts showed that the grip and hammer were sticking up six inches above the level of the seat. Id. The trial court denied Carpenter’s motion to dismiss because the officer did not immediately see the gun. However, the appellate court concluded that the undisputed facts did not establish that the gun was concealed in any way despite the fact that the officer did not see it when he first looked into the car. Id. Accordingly, the court held that the trial court should have granted Carpenter’s motion to dismiss.

On the other hand, the fact that an officer clearly sees a firearm does not necessarily mean that the gun is not concealed. As one court explained:

a person who is carrying a weapon under his coat may be carrying a concealed weapon. The fact that it is revealed to the arresting officer when the person turns and his coat swings away sufficiently for the officer to identify it as a pistol does not keep it from being a “concealed weapon” under the law.

State v. Joseph, 506 So.2d 493, 494 (Fla. 5th DCA 1987).

Here, while it was admittedly dark outside and Yarn was wearing black clothing, the State alleged that both deputies would testify that they clearly saw Yarn when they shined a spotlight on the group gathered in the yard. The State also alleged that both deputies would testify that they clearly saw Yarn holding a black T-shirt in his hand before he fled. However, despite their clear view of Yarn, neither deputy saw him carrying a firearm in plain or open view. These undisputed facts do not lend themselves to a single construction that only the dark of night or the deputies’ inopportune vantage points caused them not to see an otherwise unconcealed and openly carried firearm. Instead, another possible inference is that Yarn was holding the firearm under the T-shirt he was carrying, thus concealing it from the view of the police officers as well as others. Because the additional facts contained in the State’s traverse give rise to inferences sufficient to support a prima facie case of guilt, the trial court was required to deny Yarn’s motion to dismiss.

In this appeal, as he did in the trial court, Yarn relies on Adams v. State, 987 So.2d 1255 (Fla. 5th DCA 2008), and Davis v. State, 761 So.2d 1154 (Fla. 2d DCA 2000), to support his argument that the charge was properly dismissed. However, while those cases present factual situations somewhat similar to Yarn’s, both of those cases involve the review of a denial of a motion for judgment of acquittal made at the close of the State’s case. See also Blackmon v. State, 53 So.3d 1174 (Fla. 2d DCA 2011). Those cases considered whether the State’s evidence was sufficient to overcome the defendants’ reasonable hypotheses of innocence and prove the case beyond a reasonable doubt, a standard of review inapplicable to the issue of whether the State’s traverse presented “the barest prima facie case” sufficient to overcome a motion to dismiss. This significant factual distinction renders the rulings in Adams and Davis immaterial to the resolution of this case.

Because the State’s traverse presented sufficient additional facts to establish “the barest prima facie case” of carrying a concealed firearm, the trial court should have denied Yarn’s motion to dismiss. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . Yarn also filed a motion to suppress the statements he made and the physical evidence against him. That motion is not at issue in this appeal.

      . This court reviews an order on a motion to dismiss de novo. Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003).