
    STATE OF FLORIDA v CRAMASTA and STATE OF FLORIDA v TEITELBAUM
    Case Nos. 85-0089AC10 and 85-0090AC10 (Consolidated)
    (County Court Case Nos. 10347MM10A and 10347MM10B)
    Seventeenth Judicial Circuit, Broward County
    February 22, 1989
    APPEARANCES OF COUNSEL
    James P. McLane, for appellant.
    Hilliard Moldof, for appellee.
   OPINION OF THE COURT

J. LEONARD FLEET, Circuit Judge.

According to Fla. R. Crim. P. 3.190, a motion to dismiss under (c)(4) of this rule shall be denied if the state files a traverse which, with specificity, denies under oath the material facts or facts alleged in the motion to dismiss. The state complied completely with the procedural rule in that it filed a traverse in response to defendants’ sworn motion to dismiss specifically denying material facts alleged in the sworn motion to dismiss. Those material facts under controversy are listed in paragraph 8 and paragraph 10 and pertain to whether the defendants’ or the police officers responding to the disturbance caused the public to be incited.

According to Fla. Stat. 856.011, disorderly intoxication, the state must prove the defendant was intoxicated and causing a public disturbance. The intoxication element has been conceded to. As for who caused the public disturbance, the state in paragraph 8 did specifically state a material fact “the defendant incited others to violence.” Therefore, defendants’ sworn motion to dismiss should have been denied.

If the court finds testimony necessary to decide the issue of who incited the crowd, the appropriate time for testimony would be at trial. Rule 3.190(d) does not require that a state’s sworn traverse present by testimony or evidence specific facts which negate the material factual assertions in Rule 3.190(c)(4) motion to dismiss. Therefore the trial court’s order is hereby reversed.

This matter is remanded to the court below for proceedings not inconsistent with this opinion.

DONE AND ORDERED in Chambers, at Ft. Lauderdale, Broward County, Florida, this 22nd day of February, 1989.  