FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-1749

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STATE OF FLORIDA,

Appellant,

v.

CURTIS SEARLES,

Appellee.

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On appeal from the Circuit Court for Escambia County.

W. Joel Boles, Judge.

January 25, 2019

PER CURIAM.

The State appeals an order granting the motion to dismiss two 

counts of drug possession that was filed by Appellee, Curtis 

Searles. The State argues on appeal that the trial court improperly 

considered matters that were not appropriate when ruling on a 

motion to dismiss filed pursuant to Florida Rule of Criminal 

Procedure 3.190(c)(4), such as the element of knowledge, the issues 

of direct versus circumstantial evidence, and hypotheses of 

innocence. Although we agree,* the State failed to make this 

 ∗ As we have explained, a motion to dismiss an information 

pursuant to rule 3.190(c)(4) is analogous to a motion for summary 

judgment in a civil case. State v. Bonebright, 742 So. 2d 290, 291 

(Fla. 1st DCA 1998). The State is not obligated to produce 
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specific argument below, a fact which it acknowledges in its reply 

brief. As such, the argument was not preserved for appeal. See 

Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (noting that in 

order for an issue to be cognizable on appeal, it must be the specific 

contention asserted below as the legal ground for the objection, 

exception, or motion). We also conclude that the State invited any 

error on the trial court’s part in analyzing Appellee’s motion to 

dismiss in the context of cases involving motions for judgment of 

acquittal. The State presented to the trial court the case of Knight 

v. State, 186 So. 3d 1005 (Fla. 2016), wherein the supreme court 

discussed when the circumstantial evidence standard of review is 

to be used when ruling on motions for judgment of acquittal, and 

it participated in the discussion regarding Knight and other cases 

 

sufficient evidence to sustain a conviction. Id. “‘As long as the 

State shows the barest prima facie case, it should not be prevented 

from prosecuting.’” Id. (citation omitted); see also State v. Carry, 

75 So. 3d 803, 805 (Fla. 5th DCA 2011) (noting that the State, when 

faced with a motion to dismiss, is not obligated to produce evidence 

sufficient to sustain a conviction such as in the case of a motion for 

judgment of acquittal); State v. Yarn, 63 So. 3d 82, 86 (Fla. 2d DCA 

2011) (noting that while the appellee relied upon cases presenting 

factual situations similar to his, the cases involved the review of a 

denial of a motion for judgment of acquittal, that the standard used 

in such cases was inapplicable to the issue of whether the State’s 

evidence was sufficient to overcome a motion to dismiss, and that 

“this significant factual distinction renders the rulings [in the 

cases relied upon by the appellee] immaterial to the resolution of 

this case”); State v. Cadore, 59 So. 3d 1200, 1203 (Fla. 2d DCA 

2011) (noting that even if circumstantial evidence is not sufficient 

to convict a defendant, that does not mean that the evidence 

cannot establish a prima facie case sufficient to withstand a motion 

to dismiss and that even if a trial court doubts the sufficiency of 

the State’s evidence, it cannot grant a motion to dismiss criminal 

charges simply because it concludes that the case will not survive 

a motion for judgment of acquittal); State v. Gay, 960 So. 2d 864, 

866 (Fla. 2d DCA 2007) (noting that the trial court appeared to 

have applied the standard for deciding a motion for judgment of 

acquittal instead of the standard for ruling on a motion to dismiss). 
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involving such motions. See Flowers v. State, 149 So. 3d 1206, 1207 

(Fla. 1st DCA 2014) (noting that under the invited error doctrine, 

a party may not invite or make error in the trial court and then

take advantage of the error on appeal).

Accordingly, we affirm.

AFFIRMED.

LEWIS and WETHERELL, JJ., concur; WOLF, J. dissents with 

opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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WOLF, J., dissenting.

There was sufficient prima facie evidence to withstand a 

motion to dismiss. Knight v. State, 186 So. 3d 1005 (Fla. 2016). 

This issue was sufficiently presented both to this court and the 

trial court. I would, therefore, reverse.

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Ashley B. Moody, Attorney General, and Benjamin L. Hoffman, 

Assistant Attorney General, Tallahassee, for Appellant.

Andy Thomas, Public Defender, and Steven L. Seliger, Assistant 

Public Defender, Tallahassee, for Appellee.