         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1749
                  _____________________________

STATE OF FLORIDA,

    Appellant,

    v.

CURTIS SEARLES,

    Appellee.
                  _____________________________


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
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.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

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.


                 _____________________________

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.




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