
    Eddie B. WELLS, Appellant, v. STATE of Florida, Appellee.
    No. AH-122.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Wells appeals from his conviction of theft, section 812.014, Florida Statutes (1980 Supp.), entered on a plea of nolo contendere reserving the right to appeal the court’s denial of Wells’ pre-trial motion to dismiss on the ground there were no material disputed facts and the undisputed facts did not establish a prima facie case. Fla.R. Cr.P. 3.190(c)(4). Wells’ motion set up facts tending to support his discharge on the theory that the money he received from the victim, which Wells kept, was voluntarily given him in exchange for an unfulfilled promise to perform certain services. Cf. Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980). Even if the promise was false when made, Martin held, that would not be a false representation of existing facts supporting a conviction for larceny by false representations. But as the trial court in this case held, Wells’ motion did not show facts negating the theory, buttressed by the State’s return showing Wells was the victim’s employee, that the money given and possessed by Wells remained his employer’s until, subsequently, Wells embezzled or converted it to his own use. Wells’ motion to dismiss was properly denied.

AFFIRMED.

McCORD and BOOTH, JJ., concur.  