Opinion
No. 97-2561
Opinion filed April 15, 1998.
An appeal from the Circuit Court for Santa Rosa County. Kenneth Bell, Judge.
Robert A. Butterworth, Attorney General; Denise O. Simpson, Assistant Attorney General, Tallahassee, for Appellant.
Barry O. Beroset, of Beroset Keene, Pensacola, for Appellee.
Here, the State appeals from an order granting a motion to dismiss a manslaughter by culpable negligence count in an indictment brought against David Cole, Jr., as the result of an automobile accident in which a motorist was killed. The same order denied dismissal of a vehicular homicide count in the indictment, from which portion of the order Mr. Cole appeals. We affirm the trial court's ruling regarding the vehicular homicide count, but reverse that portion of the order dismissing the manslaughter count.
To the counts in the indictment, the State filed a traverse to Cole's motion filed under Florida Rule of Criminal Procedure 3.190(c)(4). Cole argues that the undisputed facts laid out in such motion and traverse will not, as a matter of law, support a conviction for vehicular homicide, much less manslaughter.
Without belaboring the facts of the case as revealed in the motion and traverse, we find that the State has raised disputed issues of material fact regarding Cole's recent history of seizures and further that the matters alleged in the traverse could result in Cole's conviction for manslaughter by culpable negligence.
Accordingly, we affirm in part, reverse in part, and remand for further consistent proceedings.
JOANOS, MINER and WEBSTER, JJ., CONCUR.