
    STATE of Florida, Appellant, v. Jonah Lee EPPS, Appellee.
    No. 91-1195.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 1992.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellant.
    No appearance for appellee.
   DAUKSCH, Judge.

This is an appeal from an order granting a motion to dismiss in a criminal case. Fla.R.Crim.P. 3.190(c)(4).

Appellee was charged with three counts of robbery with a firearm and one count of kidnapping. At a court appearance appel-lee and appellant agreed to a negotiated plea of nolo contendere to one count of robbery with a firearm. The court sanctioned the plea agreement and then said

While you were out I talked to your attorney, and we’ve agreed he’s going to be permitted to file a motion, a C4 motion. The state and defense are going to stipulate to all the facts in this particular case. If, based on those facts, I find you are not guilty based on the law, then you’ll be permitted to withdraw this plea and you’ll be found not guilty. Do you understand that?

There is nothing in the record to indicate that the state ever stipulated to the facts of the case and even though the trial judge had agreed to have a later hearing to allow both sides to present their positions, this was not done. Instead, the judge granted the motion to dismiss without first giving the state the chance to demur to or refute the facts stated in the motion. Under the rule the state is entitled to have its say and was not afforded that due process here. The order of dismissal is reversed and this cause remanded for reinstatement of all charges against appellee and such further proceedings as are warranted.

REVERSED and REMANDED.

W. SHARP and PETERSON, JJ., concur.  