Ramon Gonzalez was indicted for murder in the first degree. Gonzalez filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state filed a traverse admitting all allegations made by Gonzalez in his motion and offering additional facts to show the existence of a prima facie case of first degree murder. At the hearing on the motion, defense counsel argued that the undisputed facts failed to show evidence from which a jury could lawfully find premeditation. The trial court granted Gonzalez’ motion to dismiss with leave for the state to refile a charge of second degree murder. The state appeals from the order dismissing the indictment. We reverse.
Under the facts of this case, the existence of the element of premeditation cannot be determined on a motion to dismiss under rule 3.190(c)(4). Intent or state of mind is to be inferred by the trier of fact from the defendant’s acts and the surrounding circumstances. State v. Rogers, 386 So.2d 278 (Fla. 2d DCA 1980); State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979).
REVERSED.
HOBSON, A.C.J., SCHOONOVER and LEHAN, JJ., concur.