               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 Nos. 2D17-4863
                                               )                   2D18-933
JOEL DAVID FAY, JR.,                           )
                                               )
              Appellee.                        )                CONSOLIDATED
                                               )

Opinion filed September 6, 2019.

Appeals from the Circuit Court for Manatee
County; Hunter W. Carroll and Charles
Sniffen, Judges.

Ashley Moody, Attorney General,
Tallahassee, and Jason M. Miller and Elba
Caridad Martin, Assistant Attorneys General,
Tampa, for Appellant.

Peter Lombardo of Law Office of Peter
Lombardo, Bradenton, for Appellee.


VILLANTI, Judge.


              The State appeals the trial court's order granting a motion to dismiss the

charge of burglary of an unoccupied dwelling filed against Joel David Fay, Jr. The State

also appeals the trial court's order dismissing an affidavit of violation of Fay's probation,
which was based on the commission of the new underlying charge. We consolidated

both cases for purposes of this appeal.

              The State argues that the trial court should have denied Fay's motion to

dismiss because the State's circumstantial evidence established a prima facie case of

guilt. We agree and therefore reverse both dismissals.1

              Approximately six months after a burglary occurred, the victim was

organizing clothes in her dresser when she noticed small stains on one of her white

shirts. The shirt was stored beneath one of the drawers that was ransacked during the

burglary. The victim could not remember the last time she wore the shirt but guessed it

had been over a year. She testified during her deposition that she would not have put

the shirt away with stains on it and that the person who left the stains was therefore the

burglar. The police sent the shirt to a forensic analyst, who determined that the stains

were droplets of blood and that the DNA in the blood matched Fay's DNA.

              Fay filed a verified motion to dismiss pursuant to Florida Rule of Criminal

Procedure 3.190(c)(4), arguing that the circumstantial evidence was insufficient to

sustain a conviction because it failed to disprove Fay's reasonable hypothesis of

innocence that Fay's blood could have transferred on the victim's shirt at some point

prior to the burglary. During the motion to dismiss hearing, the State acknowledged that

the motion to dismiss accurately set forth the essential facts that would be presented at




              1While  the State also argues the trial court should have stricken Fay's
motion to dismiss because Fay failed to allege the facts "by personal knowledge," we
find that the jurat was sufficient to support the trial court's ruling. See Hudson v. State,
745 So. 2d 997, 999 (Fla. 2d DCA 1999). Because we conclude that the trial court had
a proper evidentiary basis to evaluate Fay's motion to dismiss, we need not address this
issue further.


                                           -2-
trial. The trial court found that the undisputed evidence failed to set forth a prima facie

case and granted Fay's motion to dismiss. We review this ruling de novo. See State v.

Trappen, 223 So. 3d 405, 407 (Fla. 2d DCA 2017) (citing Bell v. State, 835 So. 2d 392,

394 (Fla. 2d DCA 2003)).

              "Under [the rule 3.190(c)(4)] procedure, a defendant may seek dismissal

where '[t]here are no material disputed facts and the undisputed facts do not establish a

prima facie case of guilt.' " Id. (quoting Fla. R. Crim. P. 3.190(c)(4)); see also State v.

Norwood, 66 So. 3d 388, 389 (Fla. 5th DCA 2011) ("When a motion to dismiss is based

on undisputed facts, dismissal is appropriate when the undisputed facts do not establish

a prima facie case of guilt."). The burden to demonstrate that the evidence does not

establish a prima facie case falls upon the defendant and all questions and inferences

must be resolved in favor of the State. Trappen, 223 So. 3d at 407 (first citing State v.

Cadore, 59 So. 3d 1200, 1202 (Fla. 2d DCA 2011); and then citing State v. Pasko, 815

So. 2d 680, 681 (Fla. 2d DCA 2002)).

              When it comes to the weight of the evidence, however, "[a] trial court

cannot dismiss criminal charges simply because it concludes that the case will not

survive a motion for judgment of acquittal at trial." State v. Paredes, 191 So. 3d 936,

941 (Fla. 4th DCA 2016) (quoting State v. Jaramillo, 951 So. 2d 97, 99 (Fla. 2d DCA

2007)). Moreover, even " 'if the state's evidence is all circumstantial, whether it

excludes all reasonable hypotheses of innocence may only be decided at trial, after all

of the evidence has been presented,' and the issue cannot be resolved by a rule

3.190(c)(4) motion to dismiss." Id. at 942 (quoting Cadore, 59 So. 3d at 1203); accord

Jaramillo, 951 So. 2d at 98-99 (holding that the State may satisfy its burden to set forth




                                            -3-
a prima facie case by relying on circumstantial evidence); State v. Bonebright, 742 So.

2d 290, 292 (Fla. 1st DCA 1998) (holding that, because the undisputed circumstantial

evidence established a prima facie case of arson, the trial court should have denied the

motion to dismiss, irrespective of the defendant's hypothesis that someone else

committed the arson).

              As such, the circumstantial evidence cases cited by Fay both at the

hearing and in his answer brief are unpersuasive because they analyze whether a

judgment of acquittal should have been granted, rather than a motion to dismiss. See

Paredes, 191 So. 3d at 941. Thus, at the motion to dismiss stage, the trial court should

not have reached the issue of whether the circumstantial evidence excluded Fay's

reasonable hypotheses of innocence.

              Because the undisputed evidence established a prima facie case, the trial

court erred in dismissing this charge and we therefore reverse. We also reverse the

trial court's order dismissing the violation of probation charge and remand to allow the

court to reconsider its ruling in light of this opinion. See Monforto v. State, 31 So. 3d

976, 976 (Fla. 2d DCA 2010).

              Reversed and remanded with directions.


LaROSE and ATKINSON, JJ., Concur.




                                            -4-
