Rehearing Denied July 15, 1980.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
Marc H. Salton of Rock & Salton, Holiday, for appellee.
The state charged Rogers with second degree murder. The trial court granted Rogers' motion to dismiss the information. In so doing, the court improperly determined the issue of Rogers' intent. We reverse.
The state's information alleged that:
ALLEN LEE ROGERS . . . on the 8th day of June (1979) . . . by an act imminently dangerous to another, and evincing a depraved mind, regardless of human life, but without a premeditated design to effect the death of any particular person, did strike one Steven Gadoury, a human being, in the neck with a glass, thereby inflicting upon him mortal wounds, of which said mortal wounds, and by the means aforesaid and as a direct result thereof, Steven Gadoury died; contrary to Chapter 782.04(2) Florida Statutes . . . .
Rogers moved to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) alleging the following undisputed facts which he contended did not establish a prima facie case of murder in the second degree:
1. On the evening of June 8, 1979 the Defendant Allen Rogers, was present in the Crown Lounge with his brother and a few friends.
2. The Defendant was sitting on a bar stool, with his back to the bar, and facing the dance floor.
3. The deceased, STEVEN GADOURY, was dancing with one or more females in the vicinity of the Defendant.
4. While the Defendant was sitting on the bar stools, watching people dance, the deceased leaned toward the Defendant and flicked his cigarette at the Defendant, striking the Defendant in the forehead.
5. The Defendant stood up and inquired of the deceased what he was doing.
6. As the Defendant got up from the bar stool he held his mixed drink glass, which had been positioned between his thighs as he was sitting, in his right hand.
7. As the Defendant inquired of the deceased what he was doing, the deceased balled up his fists.
8. According to witness JAMES KENNEDY, the deceased raised his fists in front of himself.
9. According to witness SANDRA WILSON, the deceased extended his arms down and out from his body, with his fists clenched, ...