State v. Guyton, 75-446

• Decision Date: 30 April 1976
• Docket Number: No. 75-446,75-446
• Parties: STATE of Florida, Appellant, v. Gary GUYTON, Appellee.
• Court: Florida District Court of Appeals

Page 392

331 So.2d 392

STATE of Florida, Appellant, v. Gary GUYTON, Appellee.

No. 75-446.

District Court of Appeal of Florida, Fourth District.

April 30, 1976.

Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellee.

OWEN, Judge.

Appellee charged with attempted robbery and aggravated assault, filed a motion to dismiss pursuant to Rule 3.190(c)(4) RCrP on the basis that the State's case consisted solely of circumstantial evidence and did not exclude every reasonable hypothesis of innocence. The court, relying upon Lockett v. State, 262 So.2d 253 (4th DCA Fla.1972); Douglas v. State, 214 So.2d 653 (3rd DCA Fla.1968); Williams v. State, 206 So.2d 446 (4th DCA Fla.1968); and McGuire v. State, 288 So.2d 271 (4th DCA Fla.1974), entered an order dismissing the information.

The charge rose out of an attempted robbery of and assault upon the desk clerk of the Carolina Moon Motel. Appellee had earlier entered the office of the motel and asked the victim if she had a room for three. Upon receiving an affirmative response, appellant left the premises to 'talk to the follows.' A short time later appellee was observed on the sidewalk outside the motel looking down the street and gesturing with his head and still later he was observed on the street walking back and forth in front of the motel office. A short time later appellee and two other men drove up to the motel in an automobile from which appellee and one of the men emerged and walked into the motel office then occupied by the desk clerk. Appellee's companion pointed a gun at the desk clerk while appellee watched. When the desk clerk tried to move away, appellee's companion pursued her and struck her with the pistol inflicting serious injuries upon her. He then demanded money but abruptly left the premises when a gas truck drove up to the motel. Appellee watched but did not participate or speak. His sworn motion to dismiss alleged that he did not have a weapon, did not touch the victim nor make any attempt to strike her, did not say a word, and did not know, prior to hearing the desk clerk screaming, that the other man present in the office was going to attempt to rob the clerk or that the man had a gun, and that when the clerk started to scream appellee walked out of the office.

It is clear that the court, in dismissing the information against appellee, accepted as true the assertion...