The state appeals the order of the trial court granting appellee’s motion to dismiss. We agree with the appellant that the existence of disputed material facts in this case prevents the granting of a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). State v. Lewis, 463 So.2d 561 (Fla. 2d DCA 1985); State v. Fadden, 466 So.2d 1093 (Fla. 5th DCA 1985).
Appellee had been charged with battery on a law enforcement officer. He argues as a defense that the officer was not.performing a lawful duty when the battery took place. It is undisputed that appellee struck the officer; whether the officer was performing a lawful duty at the time is a fact in dispute which should not be determined by a (c)(4) motion. State v. Gilchrist, 458 So.2d 1200 (Fla. 5th DCA 1984).
We reverse the order of dismissal and remand for further proceedings.
DANAHY, C.J., and SCHEB, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.