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DeWITT v. ZIMMERMAN

No. 77-488.

366 So.2d 46 (1978)

S.R. DeWitt, Jr. and Rhodell Murray, Appellants, v. Rollin W. ZIMMERMAN, As Sheriff of Brevard County, State of Florida, Appellee.

District Court of Appeal of Florida, Fourth District.

Rehearing Denied February 7, 1979.

Attorney(s) appearing for the Case

John M. Starling of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellants.

Joseph R. Moss, Cocoa, for appellee.

DAUKSCH, Judge.

On appeal is an order dismissing a complaint. At the hearing on the motion to dismiss the complaint the judge heard evidence which led him to believe the plaintiff DeWitt was not entitled to relief as a matter of law. Perhaps the trial judge is correct about his legal conclusion but we must reverse because it is improper to consider anything but the complaint itself when deciding a motion to dismiss the complaint for failure to state a cause of action. Reed v. Sampson, 349 So.2d 684 (Fla. 4th DCA 1977). The order dismissing the DeWitt complaint is reversed and the trial court is affirmed as to all other points on appeal.

REVERSED in part, AFFIRMED in part.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.

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