                 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. 2D14-2235
                                               )
KAYLESHA B. BRANNIC,                           )
                                               )
             Appellee.                         )
                                               )

Opinion filed May 8, 2015.

Appeal from the Circuit Court for Manatee
County; John F. Lakin, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Bilal A. Faruqui, Assistant
Attorney General, Tampa, for Appellant.

Andrea Flynn Mogensen of Law Office of
Andrea Flynn Mogensen, P.A., Sarasota,
for Appellee.



CRENSHAW, Judge.

             The State of Florida appeals an order dismissing a charge of principal to

robbery with a firearm against Kaylesha Brannic.1 On appeal, the State argues that the



             1
               We have jurisdiction. See § 924.07(1)(a), Fla. Stat. (2013); Fla. R. App.
P. 9.140(c)(1)(A).
court wrongly granted Brannic's motion to dismiss on the basis that the State failed to

allege that Brannic participated in the crime or committed some act qualifying for a

charge as a principal. Because the court erred in granting the motion to dismiss based

on the facts adduced in the pleadings and agreed to at the hearing, we reverse and

remand for further proceedings.

              Brannic was the alleged getaway driver during her boyfriend and his

friend's robbery with a firearm of a 7-Eleven. Around 12:30 in the morning, a detective

conducted surveillance across the street from a 7-Eleven because of several recent 7-

Eleven robberies. The detective observed a vehicle going toward the 7-Eleven on a

side street. She further observed that, before the vehicle reached the 7-Eleven, it came

to a stop, its headlights were turned off, and it began to reverse, backing into a

driveway. At that point, the detective observed two men in dark attire and with covered

faces move stealthily toward the 7-Eleven and enter it. She then saw the same two

men exit the store and flee toward the vehicle. After calling in a robbery, the detective

drove closer to the vehicle. The vehicle's lights then came on and it was driven away in

a slow, calm manner. The detective followed the vehicle and, when additional deputies

arrived in the area, the vehicle sped up. The vehicle stopped when it reached a dead

end and the two men the detective had seen earlier fled. The driver, who was

subsequently identified as Brannic, remained in the vehicle. Law enforcement then

activated their lights and sirens and took Brannic into custody.

              Brannic participated in a videotaped interview with law enforcement and

made post-Miranda2 statements. In her interview, she first stated that she drove alone



              2
                  Miranda v. Arizona, 384 U.S. 436 (1966).


                                            -2-
to her boyfriend's house, got lost, and backed into the wrong driveway. She claimed

that two robbers then jumped into her car, put a gun to her head, told her where to drive

and turn, and told her to drive "with sense." She then reversed course and admitted

that she drove her boyfriend and his friend to the 7-Eleven. She stated that her

boyfriend directed her to park behind the 7-Eleven and told her to wait for the two men

to return. Moments later, she observed them, dressed in all black, run back to the

vehicle while her boyfriend's friend was carrying a gun and a bag. The two jumped into

the vehicle and told her to go. The unknown man gave her boyfriend the gun. In her

interview, Brannic admitted that she had been with her boyfriend prior to the robbery.

              Brannic filed both a motion to dismiss based on Florida Rule of Criminal

Procedure 3.190(c)(4) and a motion to suppress the statements that she had made to

police. The State filed a traverse which responded to the (c)(4) motion. The court held

a hearing, ostensibly on the motion to suppress; however, at the hearing the trial court

considered the motion to dismiss. At the hearing Brannic accepted the additional facts

in the traverse for the purpose of the motion to dismiss. At that time, Brannic's

statements were before the court.3

              "When moving to dismiss under [rule 3.190(c)(4)], a defendant has the

burden to allege that the material facts of the case are undisputed, describe what the

material facts are, and demonstrate that the undisputed facts . . . (1) fail to establish a




              3
                 After the motion to dismiss was granted, by written order, the State filed
its notice of appeal. Later, the trial court considered Brannic’s motion to suppress and
entered an order granting that motion. The parties agree that the trial court lacked
jurisdiction to enter the suppression order after this appeal was initiated. Therefore, the
order is a nullity. See Davis v. State, 93 So. 3d 409, 410 (Fla. 2d DCA 2012) (citing
Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633, 634 (Fla. 5th DCA 2005)).


                                            -3-
prima facie case . . . ." State v. Burrell, 819 So. 2d 181, 181-82 (Fla. 2d DCA 2002)

(citing State v. Reese, 774 So. 2d 948 (Fla. 5th DCA 2001)).

              The parties do not dispute that the State could establish a prima facie

case that robbery occurred, but rather the dispute turns on Brannic's involvement in the

robbery. Brannic therefore has the burden to show that the State could not establish

her liability under a principal theory: specifically that Brannic had a conscious intent that

the robbery be done and did some act which was intended to assist the other people in

committing it. See § 777.011, Fla. Stat. (2013); Fla. Std. Jury Instr. Crim. 3.5(a); Mathis

v. State, 51 So. 3d 1250, 1251 (Fla. 2d DCA 2011).

              We are cognizant that based on the facts currently in our record much of

the case against Brannic is based on inference. But that is of no moment because the

inferences must be drawn in the State's favor. See State v. Jaramillo, 951 So. 2d 97,

98-99 (Fla. 2d DCA 2007). In the early stages of the case, discovery may not even be

complete: it is entirely normal to gap-fill with inferences until further evidence is

adduced. Cf. State v. Lopez, 974 So. 2d 340, 349 (Fla. 2008) ("Often discovery

depositions are taken for the purpose of uncovering other evidence or revealing other

witnesses."). In this case, Brannic's boyfriend and his companion were seen entering a

7-Eleven after midnight and were seen leaving in all black with a gun and a bag, and

Brannic asserted two "robbers" entered her car. There is no dispute that a robbery

occurred in this case. And from Brannic's driving the men to the location, waiting behind

the store at the boyfriend's direction, seeing the armed men with a bag dressed all in

black return to the car after midnight, and her inconsistent statements to the police, it




                                             -4-
can be inferred that she had a conscious intent the robbery occur and that she assisted

with that robbery.

               Further, Brannic's initial statements that the two robbers jumped into the

car, gave her directions at gunpoint, and told her to drive "with sense," undercut any

argument that the evidence only reflected post-crime conduct insufficient for a principal

theory. Her first statements, which also served to undermine her credibility, reflect that

she was involved from the get-go. Not only do the contradictory statements reflect pre-

crime behavior, but they also reflect her "intent that the crime be done" because one

can infer that she was covering up her own or the others' misdeeds. See Mathis, 51 So.

3d at 1251.

               Simply put, for the court to have granted the motion to dismiss at this

stage, Brannic would have had to establish that "no prima facie case exists upon the

facts set forth in detail in the motion." Dixon v. State, 112 So. 3d 721, 723 (Fla. 2d DCA

2013) (internal quotation marks omitted). However, the facts adduced above establish

a prima facie case of principal to robbery, and we therefore conclude that the motion to

dismiss should have been denied. Accordingly, we reverse and remand for further

proceedings.

               Reversed.


ALTENBERND and SILBERMAN, JJ., Concur.




                                            -5-
