              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

STATE OF FLORIDA,                 )
                                  )
           Appellant,             )
                                  )
v.                                )              Case No. 2D14-1856
                                  )
GUILLERMO RAMIREZ,                )
                                  )
           Appellee.              )
_________________________________ )

Opinion filed November 6, 2015.


Appeal from the Circuit Court for
Hillsborough County; Thomas Barber,
Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Gillian N. Leytham,
Assistant Attorney General, Tampa,
for Appellant.

Howard L. Dimmig, II, Public Defender,
and Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellee.


NORTHCUTT, Judge.


             The State charged Guillermo Ramirez with trafficking in illegal drugs

based on his possession of forty hydromorphone pills. See § 893.135(1)(c)(1)(a), Fla.

Stat. (2013). Ramirez filed a motion to dismiss the information pursuant to Florida Rule
of Criminal Procedure 3.190(c)(4), claiming that he had a lawful prescription for the

drugs. Ramirez attached a pharmacy record reflecting that he had been prescribed

hydromorphone tablets. Although the State's traverse pointed out that the pills Ramirez

possessed were a different strength than the pills he had been prescribed, the court

dismissed the information. We reverse.

              The various burdens involved when a defendant seeks dismissal of an

information under the rule were explained in State v. Kalogeropolous, 758 So. 2d 110

(Fla. 2000). The defendant's sworn motion must allege specific facts that show "[t]here

are no material disputed facts and the undisputed facts do not establish a prima facie

case of guilt." Fla. R. Crim. P. 3.190(c)(4). To defeat the motion, the State's traverse

must specifically deny the facts set forth in the motion or add additional facts that meet

the minimal requirement of a prima facie case. See Fla. R. Crim. P. 3.190(d);

Kalogeropolous, 758 So. 2d at 112.

              The State met its burden in this case. Ramirez's sworn motion alleged

that he had a lawful prescription for hydromorphone. The pharmacy record attached to

support this fact showed that eight-milligram tablets had been dispensed to him. The

State's traverse denied that the pharmacy record required a dismissal because lab

results from the Florida Department of Law Enforcement demonstrated that the pills

found in Ramirez’s possession were four milligrams in size, not the eight-milligram pills

that had been prescribed. This fact specifically refuted the factual basis of Ramirez's

prescription defense as set forth in his motion to dismiss.




                                            -2-
              The State having established that a material fact was in dispute, denial of

Ramirez's motion to dismiss was mandatory. See Fla. R. Crim. P. 3.190(d);

Kalogeropolous, 758 So. 2d at 112. Accordingly, we reverse and remand with

instructions to reinstate the information.




SILBERMAN and SALARIO, JJ., Concur.




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