STATE OF FLORIDA, APPELLANT,
v.
RAMON GONZALEZ, APPELLEE
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PER CURIAM.
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.
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State v. Atkinson, 490 So. 2d 1363 (Fla. 5th DCA 1986)…(Fla. 1st DCA 1986); State v. Sheppard, 401 So. 2d 944 (Fla. 5th DCA 1981). Generally, the intent of the defendant is not an issue for determination on a motion to dismiss. See State v. Hricik, 445 So. 2d 1119 (Fla. 2d DCA 1984); State v. Gonzalez, 433 So. 2d 646 (Fla. 2d DCA 1983); State v. Alexander, 406 So. 2d 1192 (Fla. 4th DCA 1981). Atkinson contends that in the present case, because there was no direct evidence of intent, the trial court was correct in granting his motion to dismiss. The state, in it…
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State v. Pforr, 461 So. 2d 1006 (Fla. 1st DCA 1984)…dicate which would support the charged offense of premeditated first degree murder. The element of premeditation is generally á factual issue of intent properly determined by the jury. See Lee v. State, 141 So. 2d 257 (Fla.1962); State v. Gonzalez, 433 So. 2d 646 (Fla. 2d DCA 1983). And as the court recognized, the factual allegations of appellee’s motion are properly construed in a manner favorable to the state. See State v. Hires, 372 So. 2d 183 (Fla.2d DCA 1979). While a controlling or dominating passion…
Authorities Cited
- State v. J. T. S. and G. R. W., 373 So. 2d 418 (Fla. 2d DCA 1979)
- State v. Rogers, 386 So. 2d 278 (Fla. 2d DCA 1980)