
    STATE of Florida, Appellant, v. Daniel Benjamin FUSSELL, Appellee.
    No. 74-1033.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    Arnold D. Levine and Richard A. Laz-zara of Levine, Freedman & Hirsch, Tampa, for appellee.
   PER CURIAM.

Appellant, State of Florida, appeals an order dismissing two counts of an amended information. Count II of the amended information charged appellee-defendant, Daniel Benjamin Fussell, with aggravated assault, and count III thereof charged resisting arrest with violence.

Upon consideration of the record and briefs, we determine that the trial court erred in dismissing count II and count III of amended information No. CR 73-2351 on the ground of collateral estoppel, as the ultimate issue of fact to be determined in the instant counts has never been determined by any previous litigation between the parties.

Accordingly, the order appealed is reversed and the cause remanded with directions to reinstate count II and count III of amended information No. CR 73-2351, and for further proceedings consistent with the views herein expressed.

Reversed and remanded, with directions.

CROSS, MAGER and DOWNEY, JJ., concur.  