There are three degrees of Murder under Florida law, each of which is defined in Florida Statute s. 782.04. Each degree of Murder requires different elements of proof, and each comes with a different level of possible punishment.
First-Degree Murder
There are two ways a person may commit First-Degree Murder: First-Degree Premeditated Murder or First-Degree Felony Murder.
Premeditation
First-Degree Premeditated Murder is the unlawful killing of a person with a premeditated plan to do so. “Killing with premeditation” is killing after consciously deciding to do so. The decision to kill must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the actual killing itself. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.
A defendant charged with First-Degree Premeditated Murder may argue that they did not act with premeditation, but rather in the heat of passion, based on provocation. In order to find that the defendant did not act with a premeditated design to kill, but instead acted in the heat of passion, a jury must find that: 1) there was a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; 2) a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; 3) there was not a reasonable amount of time for a reasonable person to cool off; 4) a reasonable person would not have cooled off before committing the act that caused death; and 5) the defendant was, in fact, so provoked and did not cool off before committing the act that caused the death of the victim.
First- Degree Felony Murder
First-Degree Felony Murder is the unlawful killing of a person by another person who is, at the time, engaged in the commission of (or attempt to commit) one of the following separate crimes: Drug Trafficking, Arson, Sexual battery, Robbery, Burglary, Kidnapping, Escape, Aggravated Child Abuse, Aggravated Abuse of an Elderly Person or Disabled Adult. Aircraft Piracy, Unlawful Throwing/Placing/Discharging of a Destructive Device or Bomb, Carjacking, Home-Invasion Robbery, Aggravated Stalking; Murder (of another human being), Resisting an Officer with Violence, Aggravated Fleeing or Eluding with Serious Bodily Injury or Death, Terrorism, Human trafficking, or Distribution of a Controlled Substance (when the controlled substance leads to the death of another).
Penalties
First-degree Premeditated Murder and First-Degree Felony Murder are capital felonies, meaning they are punishable by death. To learn more about death penalty proceedings, refer to Florida Statute s. 921.141. A person convicted of First-Degree Murder who is not sentenced to death must be sentenced to life in prison without the possibility of early release. There are, however, exceptions to this rule for defendants who are younger than 18 years old at the time the offense is committed.
Second-Degree Murder
Second-degree murder is defined as the unlawful killing of a person by an “act imminently dangerous to another and evincing a depraved mind regardless of human life”, and does not require proof of premeditation.
Second-Degree Felony Murder
Second-Degree Felony Murder is very similar to First-Degree Felony Murder, but in this case, the defendant did not themselves directly kill the victim, but the victim was killed by another person while the defendant is committing or attempting to commit one of the following separate offenses: Drug Trafficking, Arson, Sexual Battery, Robbery, Burglary, Kidnapping, Escape, Aggravated Child Abuse, Aggravated Abuse of an Elderly Person or Disabled Adult, Aircraft Piracy, Unlawful Throwing/Placing/Discharging Destructive Device or Bomb, Carjacking, Home-Invasion Robbery, Aggravated Stalking, Murder (of another human being), Resisting an Officer with Violence, Aggravated Fleeing or Eluding with Serious Bodily Injury or Death, or Terrorism.
Penalties
Second-Degree Murder and Second-Degree Felony Murder are first-degree felonies punishable by a term of years in the department of corrections not exceeding life (while a defendant convicted of second-degree murder may be sentenced to life in prison, unlike first-degree murder, a life sentence is not mandatory).
Third-Degree Murder
Third-Degree Murder is defined as the unlawful killing of a person, done without any intent to cause the death, by a person who is committing any felony which is not one of the felonies mentioned in the Felony Murder statute (above).
Penalties
Third-Degree Murder is a second-degree felony, punishable by up to 15 years of prison or probation, or a combination thereof. (Note: If a defendant is sentenced to probation, the time spent on probation does not count toward a prison sentence if they later violate their probation. For instance, if a person is sentenced to 15 years of probation, and violates probation during their last year of probation, the court could lawfully sentence them to 15 years in prison.)
Manslaughter
Manslaughter is defined in Florida Statute s. 782.07 as the killing of a person by the act, procurement, or culpable negligence of another, without lawful justification.
Penalties
Manslaughter is a second-degree felony punishable by up to 15 years of prison, probation, or a combination thereof. The crime of Manslaughter is considered “aggravated” when the victim is elderly, disabled, or under the age of 18. The penalty for an Aggravated Manslaughter (a first-degree felony) is up to 30 years in prison, on probation, or some combination thereof.
Defenses to Homicide
Excusable Homicide – In Florida, a Homicide is “excusable” when it is committed by accident, while doing something lawful, in a lawful manner, using ordinary caution, and without any unlawful intent; or by accident and in the heat of passion, upon sudden and sufficient provocation, or upon sudden combat, without using a dangerous weapon or acting in a cruel or unusual manner. See Florida Statute s. 782.03
Justifiable Use of Deadly Force – Under Florida Law, the use of deadly force is “justifiable” when used to resist another person’s attempt to murder them, or to commit some other felony upon them while they are in their own home, or some other place they have a right to be. See Florida Statutes Chapter 776
Self-Defense/“Stand Your Ground”
Many people are familiar with the phrase “stand your ground” as it is used in Florida law. While “stand your ground” and “self-defense” are similar concepts, there are some important distinctions to consider. Basically, self-defense is the general concept of the justifiable use of force, while “stand your ground” refers to a specific law that provides immunity from prosecution. Each legal concept involves different legal procedures and standards of proof, and sometimes, a defendant may use both.
NOTE – Florida law allows both the use of deadly and non-deadly force as a means of self-defense, provided of course that the force used is lawful. Because this section discusses homicide and manslaughter, we will only address the use of deadly force here.
Justifiable Use of Force – A person is justified in using (or threatening to use) deadly force if they reasonably believe that doing so is necessary to prevent imminent death/great bodily harm/or the commission of a forcible felony against themselves or another. A person who acts according to the requirements of this law does not have a duty to retreat and can “stand their ground”. A person who is engaged in criminal activity, or in a place where they do not have a right to be, can not benefit from this law.
Home Protection – A person who is in a dwelling/residence where they have a right to be has no duty to retreat and may “stand their ground” and use/threaten deadly force when they reasonably believe it is necessary to prevent imminent death/great bodily harm/commission of a forcible felony against themselves or another.
It is legally presumed that a person had such a reasonable fear if: a) The other person was unlawfully/forcefully entering, had already unlawfully/forcibly entered, or was attempting to unlawfully/forcefully enter, a dwelling/residence/occupied vehicle, or if they were attempting to/in the process of/already had removed another person from their dwelling/residence/occupied vehicle; and (b) the person using/threatening the deadly force knew or had reason to believe that such an unlawful/forcible entry or unlawful/forcible act was occurring or had occurred.
Stand Your Ground Immunity
A person who uses/threatens deadly force as permitted above is justified in doing so and is therefore immune from criminal prosecution. A defendant will normally raise the “stand your ground” immunity defense by filing a pretrial motion to dismiss. In a criminal prosecution, once a prima-facie (i.e. facially sufficient) claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity (the State) from criminal prosecution. While it’s generally preferable to raise stand your ground immunity through a pretrial motion, a Judge can also determine whether a defendant is immune from criminal prosecution based on the evidence admitted at trial.
Self-Defense at Trial – A defendant may raise self-defense at trial, which includes the use of threatened use of deadly force. The following are general instructions given to a jury for self-defense regarding the justified use of deadly force:
It is a defense if the actions of the defendant constituted the justifiable use or threatened use of deadly force. “Deadly force” means force likely to cause death or great bodily harm. “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises. If in your consideration of the issue of [self-defense] [defense of another] you have a reasonable doubt on the question of whether (defendant) was justified in the [use] [or] [threatened use] of deadly force, you should find [him] [her] not guilty. However, if from the evidence you are convinced beyond a reasonable doubt that (defendant) was not justified in the [use] [or] [threatened use] of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.
NOTE – Self-defense is a very complex and factually specific legal issue. There are several additional jury instructions that may be given that limit a person’s ability to successfully argue self-defense at trial. It is extremely important that a person discuss with his or her attorney the specific facts of his/her case to determine the strengths and weaknesses of arguing self-defense trial.
Attempts
Florida law recognizes offenses for both attempted homicide and attempted manslaughter. These are known as inchoate offenses, which are defined as: Attempts to commit an offense, including any act toward the commission of the offense, when the person fails to commit the offense or is intercepted/prevented in the execution of the offense.
If a person attempts a capital felony, the attempt is a felony of the first degree. If a person attempts a life felony or a felony of the first-degree, they commit a second-degree felony. If a person attempts a second-degree felony, a third-degree Burglary, or a third-degree felony with a level ranking of 3, 4, 5, 6, 7, 8, 9, or 10 pursuant to the Criminal Punishment Code Scoresheet, they commit a third-degree felony.
Weapons Reclassification
Florida law allows the State to reclassify the level of an offense if a firearm or other weapon was used during commission of the offense. Under Florida Statute 775.087(1) A person charged with any felony (except a felony in which the use of a weapon or firearm is an essential element) who, during the commission the felony, carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission the felony commits an aggravated battery, the felony shall be reclassified as follows: a) In the case of a felony of the first degree, to a life felony; b) In the case of a felony of the second degree, to a felony of the first degree; c) In the case of a felony of the third degree, to a felony of the second degree.
10-20-Life Law
Florida’s “10-20-Life” law (Florida Statute s. 775.087) provides enhanced penalties when a person possesses or uses a firearm during the commission of certain offenses. Florida’s “10-20-Life” law applies to homicide and attempted homicide but does not apply to manslaughter offenses.
If a person is convicted of a homicide or attempted homicide, and during commission of the offense actually possessed a firearm, the court must impose a 10-year minimum mandatory sentence. If a person is convicted of a homicide or attempted homicide, and during commission of the offense actually possessed a firearm and discharged the firearm, the court must impose a 20-year minimum mandatory sentence. If a person is convicted of a homicide or attempted homicide, and during commission of the offense actually possessed a firearm, discharged the firearm, and as a result of the discharge caused death or great bodily harm to another, the court must impose a 25 year to Life minimum mandatory sentence.
Minimum-Mandatory Sentences, Generally
Minimum-mandatory sentences like these are required, meaning the judge has no choice but to impose the sentence. A person serving a minimum-mandatory sentence does not get gain time and must serve the sentence day-for-day. These sentences provide minimums, but do not prevent the judge from imposing a higher sentence, within the bounds of the law.
Special Jury findings
If a conviction is based on a jury verdict at trial, in order for the court to sentence a person to any of these weapon enhancements, the jury must make special factual findings and include that on special verdict forms. A judge may not make that determination on their own based on the evidence admitted at a jury trial.
Board Certified Criminal Trial Attorney Benjamin Wurtzel has experience with homicide cases, including different levels of murder, felony murder, and attempted murder, as well as manslaughter. If you or a loved one have been accused of an act of homicide, call Wurtzel Law today for a free consultation to learn how we can help.