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Homicides

When you or I speak of homicide, we immediately think of premeditated murder. In actuality, homicide is an umbrella term for any charge that involves the killing of another. This can range from first-degree premeditated murder all the way to manslaughter.  The differences between these charges are incredibly important, as the possible sentencing can range from the death penalty or life in prison without any possibility of parole down to a second-degree felony punishable by up to fifteen years of incarceration in the Florida Department of Corrections. If you or someone you know has been arrested and charged with a homicide offense, it is incredibly important that you reach out to me as soon as possible so that we can begin to craft a defense!

Entire law school classes are built around the technicalities and intricacies of these laws, so I can only give a brief overview here of the differences between these various categories.  In broad strokes, there are three types of homicides: murder, felony murder, and manslaughter.

First-degree premeditated murder is the intentional killing of another person and is a capital (death-penalty eligible) offense.  Premeditation means that there was planning or forethought involved by the person who committed the killing.  The amount of time needed for premeditation is very little.  Murder in the second degree is a killing of another individual through an act that shows a “depraved mind”, but with no premeditation (i.e. no planning). A classic example would be a bar fight that escalates and results in death.

Felony murder in the first degree is an intentional killing that is committed by the defendant and while the defendant is committing one of 18 enumerated felonies (for example, robbery or sexual battery).  Felony murder in the second degree is exactly like felony murder in the first degree, except that the defendant does not have to be the one who actually killed the victim.  A classic example is a bank robbery that gets out of hand, where a co-defendant shoots and kills someone.  The shooter would have committed first-degree felony murder and the co-bank robber would have committed second-degree felony murder.  Both second-degree murders are life felonies, but not capital offenses. Felony murder in the third degree is felony murder in the second degree, except that the underlying felony is not one of the previously mentioned 18 enumerated felonies. This charge is a felony of the second degree punishable by up to 15 years of incarceration.

Manslaughter comes in many forms, but essentially is a killing of another that doesn’t meet the criteria of murder or felony murder and usually involves a level of negligence on behalf of the defendant. Shooting a gun into the air to celebrate new years and hitting an innocent bystander could be considered manslaughter, as the defendant certainly never had any intention to hurt or injure anyone but engaged in behavior that was grossly negligent.   The standard manslaughter charge is a second-degree felony punishable by up to 15 years of incarceration.  If the person who is killed is elderly, a child, or a firefighter/police officer, then the charge becomes aggravated manslaughter punishable by up to 30 years of incarceration.  In addition, if a person operates a boat or vehicle in a reckless manner and kills another, then the person can be charged with vehicular homicide, which is a second-degree felony.  If a person drives or operates a boat under the influence and an individual is killed, then the person has committed a DUI/BUI manslaughter which is a second-degree felony. If, however, the person knowingly left the scene of the vehicular homicide or DUI/BUI manslaughter, then the charge becomes a felony of the first degree, punishable by up to 30 years of incarceration.

As you can see, this is an incredibly complex area of the law and the most minor factual differences can mean the difference between facing potential capital punishment or freedom. We haven’t even discussed how attempts and defenses, such as Stand Your Ground, factor into all of this analysis.  It is vital that you reach out to me now to schedule a free consultation!

Murder and Felony Murder – Fla. Stat. 782.04(1)(a)

    1. The unlawful killing of a human being:
      1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;
      2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:
        1. Trafficking offense prohibited by s. 893.135(1),
        2. Arson,
        3. Sexual battery,
        4. Robbery,
        5. Burglary,
        6. Kidnapping,
        7. Escape,
        8. Aggravated child abuse,
        9. Aggravated abuse of an elderly person or disabled adult,
        10. Aircraft piracy,
        11. Unlawful throwing, placing, or discharging of a destructive device or bomb,
        12. Carjacking,
        13. Home-invasion robbery,
        14. Aggravated stalking,
        15. Murder of another human being,
        16. Resisting an officer with violence to his or her person,
        17. Aggravated fleeing or eluding with serious bodily injury or death,
        18. A felony that is an act of terrorism or is in furtherance of an act of terrorism, including a felony under s. 775.30, s. 775.32, s. 775.33, s. 775.34, or s. 775.35, or
        19. Human trafficking; or
  • Which resulted from the unlawful distribution by a person 18 years of age or older of any of the following substances, or mixture containing any of the following substances, when such substance or mixture is proven to be the proximate cause of the death of the user:
    1. A substance controlled under s. 893.03(1);
    2. Cocaine, as described in s. 893.03(2)(a)4.;
    3. Opium or any synthetic or natural salt, compound, derivative, or preparation of opium;
    4. Methadone;
    5. Alfentanil, as described in s. 893.03(2)(b)1.;
    6. Carfentanil, as described in s. 893.03(2)(b)6.;
    7. Fentanyl, as described in s. 893.03(2)(b)9.;
    8. Sufentanil, as described in s. 893.03(2)(b)30.; or
    9. A controlled substance analog, as described in s. 893.0356, of any substance specified in sub-subparagraphs a.-h.,

is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.

  1. The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
  2. When a human being is killed during the perpetration of, or during the attempt to perpetrate, any:
    1. (a) Trafficking offense prohibited by s. 893.135(1),
    2. (b) Arson,
    3. (c) Sexual battery,
    4. (d) Robbery,
    5. (e) Burglary,
    6. (f) Kidnapping,
    7. (g) Escape,
    8. (h) Aggravated child abuse,
    9. (i) Aggravated abuse of an elderly person or disabled adult,
    10. (j) Aircraft piracy,
    11. (k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
    12. (l) Carjacking,
    13. (m) Home-invasion robbery,
    14. (n) Aggravated stalking,
    15. (o) Murder of another human being,
    16. (p) Aggravated fleeing or eluding with serious bodily injury or death,
    17. (q) Resisting an officer with violence to his or her person, or
    18. (r) A felony that is an act of terrorism or is in furtherance of an act of terrorism, including a felony under s. 775.30, s. 775.32, s. 775.33, s. 775.34, or s. 775.35,

by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony commits murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

  1. The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:
    1. (a) Trafficking offense prohibited by s. 893.135(1),
    2. (b) Arson,
    3. (c) Sexual battery,
    4. (d) Robbery,
    5. (e) Burglary,
    6. (f) Kidnapping,
    7. (g) Escape,
    8. (h) Aggravated child abuse,
    9. (i) Aggravated abuse of an elderly person or disabled adult,
    10. (j) Aircraft piracy,
    11. (k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
    12. (l) Unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,
    13. (m) Carjacking,
    14. (n) Home-invasion robbery,
    15. (o) Aggravated stalking,
    16. (p) Murder of another human being,
    17. (q) Aggravated fleeing or eluding with serious bodily injury or death,
    18. (r) Resisting an officer with violence to his or her person, or
    19. (s) Felony that is an act of terrorism or is in furtherance of an act of terrorism, including a felony under s. 775.30, s. 775.32, s. 775.33, s. 775.34, or s. 775.35,

is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Manslaughter & Aggravated Manslaughter – Fla. Stat.  782.07

  1. The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter
  2. A person who causes the death of any elderly person or disabled adult by culpable negligence under s. 825.102(3) commits aggravated manslaughter of an elderly person or disabled adult, a felony of the first degree
  3. A person who causes the death of any person under the age of 18 by culpable negligence under s. 827.03(2)(b) commits aggravated manslaughter of a child, a felony of the first degree
  4. A person who causes the death, through culpable negligence, of an officer as defined in s. 943.10(14), a firefighter as defined in s. 112.191, an emergency medical technician as defined in s. 401.23, or a paramedic as defined in s. 401.23, while the officer, firefighter, emergency medical technician, or paramedic is performing duties that are within the course of his or her employment, commits aggravated manslaughter of an officer, a firefighter, an emergency medical technician, or a paramedic, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

 

Driving Under the Influence Manslaughter – Fla. Stat. 316.193(3)(a)(b)(c)(3)

  1. A person is guilty of the offense of driving under the influence if the person is driving or in actual physical control of a vehicle within this state and:
    1. The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
    2. The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
    3. The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
  2. Who, by reason of such operation, causes or contributes to causing:
  3. The death of any human being commits DUI manslaughter, and commits:
    1. A felony of the second degree
    2. A felony of the first degree if:
      1. At the time of the accident, the person knew, or should have known, that the accident occurred; and
      2. The person failed to give information and render aid as required by s. 316.062.

 

Boating Under the Influence Manslaughter – Fla. Stat. 327.35(3)(a)(b)(c)(3)

  1. A person is guilty of the offense of boating under the influence if the person is operating a vessel within this state and:
    1. The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
    2. The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
    3. The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
  2. Who, by reason of such operation, causes or contributes to causing:
  3. The death of any human being commits BUI manslaughter, and commits:
    1. A felony of the second degree
    2. A felony of the first degree if:
      1. At the time of the accident, the person knew, or should have known, that the accident occurred; and
      2. The person failed to give information and render aid as required by s. 327.30.

 

 

Vehicular or Vessel Homicide – Fla. Stat. 782.071, 782.072

“Vessel homicide” or “vehicular homicide” is the killing of a human being by the operation of a vessel or vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.

 

 

Homicide Instructions

Jury Instruction 7.1 Introduction to Homicide

Jury Instruction 7.2 (Premeditated) Murder — First Degree

Jury Instruction 7.3 Felony Murder — First Degree

Jury Instruction 7.4 Murder — Second Degree

Jury Instruction 7.5 Felony Murder — Second Degree

Jury Instruction 7.6 Felony Murder — Third Degree

Jury Instruction 7.7 Manslaughter

Jury Instruction 7.7(a) Aggravated Manslaughter

Jury Instruction 7.8 Driving Under the Influence Manslaughter

Jury Instruction 7.8(a) Boating Under the Influence Manslaughter

Jury Instruction 7.9 Vehicular or Vessel Homicide

Jury Instruction 7.10 Preliminary Instructions in Penalty Proceedings

Jury Instruction 7.11 Final Instructions in Penalty Proceedings

Jury Instruction 7.12 Dialogue For Polling the Jury

Jury Instruction 7.13 Murder – Reclassified By Victim’s Employment As LEO

 

Attempted Homicide Instructions

Jury Instruction 6.1 Introduction to Attempted Homicide

Jury Instruction 6.2 Attempted Murder — First Degree (Premeditated)

Jury Instruction 6.3 Attempted Felony Murder

Jury Instruction 6.3(a) Attempted Felony Murder — Injury Caused By Another

Jury Instruction 6.4 Attempted Second Degree Murder

Jury Instruction 6.5 Attempted Felony Murder

Jury Instruction 6.6 Attempted Manslaughter by Act

Jury Instruction 6.7 Attempted Murder – Reclassified By Victim’s Employment As LEO

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