One of the most serious offenses a person can be accused of in their lifetime is the heinous crime of murder. Under Florida Statute 782.04, murder is defined as the unlawful killing of a human being. There are various degrees of murder in Florida—three to be specific—with first degree murder being the most serious. The different degrees of murder are distinguished by the underlying circumstances surrounding the killing of the victim, as well as the Defendant’s state of mind at the time of the murder. Additionally, each carry distinctive penalties with death being the greatest consequence. Having a law firm by your side that has extensive experience representing clients in murder cases cannot be overstated and is paramount when your life is at stake. The Joshi & Schisani Law Firm has represented numerous clients—specifically with accusations of murder against them—and we are humbled to say that we’ve received many positive outcomes for our clients.
A. First Degree Murder
Murder in the first degree is any killing that is premeditated, meaning the Defendant had an advanced plan or scheme to carry out the killing. Additionally, the prosecution must illustrate that the Defendant had the specific intent to kill the victim. To show premeditation, the prosecution will often show evidence regarding the steps the Defendant took to prepare for the murder. There is no specified amount of time needed to prove premeditation. All that is required is that the Defendant consciously formed a plan, design, or scheme and specifically intended to kill the victim.
- For example, the Defendant doesn’t like a specific football player on a team. After a Sunday night football game, the Defendant waits in his car for the player to leave the stadium. He previously bought a pistol and ammo, which is secured in the glove compartment of the vehicle and is loaded. An hour goes by and he finally sees the player exit the building. Seeing this as an opportunity to execute the crime, the Defendant grabs his gun, exits the vehicle, and shoots the player in the parking lot—killing him in cold blood. Under these set of facts, the Defendant could be charged with premeditated first degree murder.
Alternatively, a person can commit first degree murder if the victim is killed during the commission of a specified felony—enumerated under the Florida murder statute—or an attempt to carry out an enumerated felony. This is often referred to as felony murder.
Some of the felony crimes enumerated under the Florida murder statute include burglary, arson, kidnapping, robbery, aggravated child abuse, sexual battery, carjacking, aggravated stalking, among other felonies.
- For example, the Defendant sees a little old lady walking in the park with a designer purse. The lady is feeding the ducks in the nearby pond. The Defendant approaches the lady with a loaded gun drawn and shouts at her to give him the purse. The lady tells the Defendant no and starts frantically running in the opposite direction visibly frightened. The Defendant chases after her and smacks her in the back of the head with the end of his pistol—hoping she will drop her purse. The lady falls over, hits her head on a nearby bench, and becomes unconscious. The Defendant flees with the purse and the lady dies 15 minutes later. Since the victim was killed while the Defendant was committing a robbery, the Defendant could be charged with first degree felony murder.
Murders committed during specified drug dealing offenses may also constitute first degree murder.
First Degree Murder is a capital felony in the state of Florida, which means the State may seek the death penalty. Therefore, if a person is convicted of first degree murder in Florida, they will either be sentenced to death or life imprisonment.
B. Second Degree Murder
Under the Florida murder statute, second degree murder is committed when the individual commits murder with a depraved mind. This means that the killing was not executed with premeditation; but perpetrated by an act imminently dangerous to another and evincing a depraved mind showing no regard to human life. The chief distinction between first degree murder and second degree murder is that the latter lacks a premeditated and specific intent to cause death. Additionally, a person can be charged with second degree murder if they are an accomplice to felony murder—also called accomplice felony murder.
In Florida, second degree murder is a first degree felony and carries severe penalties including up to life in prison, life on probation, and a $10,000 fine. It is assigned a level 10 offense severity ranking—i.e. most severe ranking—under the Florida Criminal Punishment Code. If an individual is convicted of second degree murder, it carries a minimum mandatory of at least 16 and three quarters years’ imprisonment without the possibility for parole. It’s noteworthy to point out that if a firearm was used to commit the murder, the accused will receive a minimum mandatory sentence of 25 years in prison—Florida’s 10-20-Life Law.
C. Third Degree Murder
There are only three states that have a third degree murder law—Florida, Pennsylvania, and Minnesota. Under Florida Statute 782.04(4), an individual can be charged with third degree murder if they unintentionally kill another person while committing—or attempting to commit—a non-violent felony. This particular crime is considered a second degree felony in the state of Florida and carries penalties of up to 15 years of prison, 15 years of probation, and a $10,000 fine. If an individual is convicted of third degree murder it carries a minimum mandatory sentence of 10 and one-third years in prison; however, the Defendant can be sentence up to the statutory maximum of 15 years’ imprisonment—mostly dependent on the heinous nature surrounding the facts of the case and the person’s prior criminal history, among other factors that may be considered. Being charged with a crime of this magnitude is certainly devastating and shouldn’t be taken lightly.
A noteworthy exception to the non-violent rule that should be elucidated or brought to one’s attention is the “controlled substance exception.” Under this exception, a person could conceivably be charged with first degree felony murder if, for example, it is found that a person’s death is proximately caused by ingesting a controlled substance offered or given by the seller. It must be determined that the person sold the drugs to the victim and that the victim died specifically by taking the drugs provided by the dealer. Under these facts, the seller of the drugs could be charged with first degree murder instead of third degree murder.
D. Attempted Murder
In the state of Florida, the crime of attempted murder is aggressively prosecuted and can carry similar punishments as a murder charge. When an individual is a victim of a crime of this caliber, the State doesn’t look at the fact that the victim survived as a reason to hold back on seeking a lengthy prison sentence. Moreover, the prosecution will likely argue to the Court that the penalty should be the same as if the victim ultimately passed away. Consequently, being charged with attempted murder should be taken as serious as a murder charge.
An individual commits attempted murder if they take a direct and actual step towards killing a person and does so with the intent to kill. A “direct step” is an action taken by the accused that goes beyond mere preparation to commit the murder, and instead moves towards actually perpetrating it. In other words, actually putting the plan into motion which could result in the victim’s death—as opposed to thinking about it or talking about it. Although the type of action required to constitute a direct step differs on a case by case basis, there are numerous actions that qualify. These include, but are not limited to, stalking, luring, breaking-in a home to kill somebody within, solicitation, among others.
In Florida, there are two types of attempted murder: first degree attempted murder and second degree attempted murder. The difference between the two is that first degree attempted murder requires premeditation—which is further explained in the preceding paragraphs—while second degree attempted murder does not. Nevertheless, a highly contested issue in the courtroom for these types of cases is whether the accused had the requisite intent to kill. The prosecution will do their best to try to convince the jury that the suspect did in fact intend to kill—e.g. via physical and testimonial evidence—while the defense will argue that the Defendant’s actions fell short.
As previously mentioned, the consequences of attempted murder can be just as harsh as murder itself. An individual charged with first degree attempted murder faces up to life in prison—among other penalties the Court can impose. A person charged with second degree attempted murder could face up to 15 years in prison or even more if a firearm was discharged—Florida’s 10-20-Life law. If a firearm is discharged, the sentence is a minimum mandatory of 25 years in prison.
A popular defense to an attempted murder charge is the abandonment defense. This defenses requires a showing that the individual completely and voluntarily stopped all actions in furtherance of the crime, or otherwise prevented its commission. This does not include if the Defendant failed to complete the offense because of unforeseen difficulties or unanticipated resistance. Additionally, some of the same defenses as murder apply, such as self-defense, defense of others, among other defenses.
How will the Joshi & Schisani Law Firm protect you from a murder charge?
As soon as our law firm is retained we initiate an exhaustive investigation on the case. We file what is called a Demand for Discovery, which allows our defense team to gather everything in the State’s possession—including exculpatory evidence, arrest reports, witness testimony, videos, fingerprints, other physical evidence—to intricately and meticulously pick apart a seemly strong case, and inevitably cast doubt on the prosecution’s case. Additionally, we are able to take depositions in these cases, which can be advantageous if executed properly. A witness can only be deposed once—unless good cause is shown—which is why it’s imperative that they’re done correctly the first time. Our attorneys at the Joshi & Schisani Law Firm are experienced and skilled at deposing witnesses, which oftentimes reveals that the case might not be as strong as the prosecution previously thought. Further, our firm involves medical and forensic specialists—among other specialists if warranted—to offer expert testimony to help in your defense. Subtle distinctions in your defense preparation can be all the difference between a lengthy prison sentence and having your charges reduced or potentially dropped.
Below are some defenses to a murder charge in the state of Florida:
- Self defense
- Defense of others
- Excusable homicide
- Justifiable homicide
- Suspect lacked the requisite state of mind—i.e. manslaughter
- Insufficient evidence to support a conviction
- Excluding evidence against a person that was illegally obtained by law enforcement
- Among other defenses—including pre-trial and trial defenses.
Manslaughter is differentiated from murder in that it lacks the requisite malice aforethought. In Florida, manslaughter is considered a second degree felony and carries harsh penalties, including up to 15 years in prison, 15 years of probation, and a fine of up to $10,000, among other sanctions. Additionally, manslaughter carries a minimum mandatory of 9 ¼ if the individual is convicted. Manslaughter can be enhanced to a first degree felony—if aggravating circumstances exist—which may increase the prison sentence to 30 years. This is often called aggravated manslaughter and is committed when a person perpetuates a manslaughter involving a child, elderly person, or disabled person.
Unlike some other states, Florida does not distinguish manslaughter into separate categories—i.e. voluntary and involuntary manslaughter. However, an individual can still commit manslaughter in similar ways. For example, comparable to the common law voluntary manslaughter, a person can commit manslaughter in Florida by intentionally killing the victim out of a sudden provocation. The State must prove that the Defendant killed because of a sudden, unexpected circumstance or event that brought on provocation, and as a result the Defendant killed the victim out of a sudden “heat of passion.” For example, a sudden rage brought on by seeing your spouse intimately with another person. If the person immediately kills their spouse under these facts, then the person can be charged with voluntary manslaughter. Note: if the accused has time to cool off and then subsequently kills, they could be charged with murder.
- Sofia comes home after a long day of work and sees her husband in bed with another woman. Seeing this, she becomes very angry and kills him on the spot.
- Example of murder:
- Sofia comes home after a long day of work and sees her husband in bed with another woman. Seeing this right before her eyes, she becomes very angry and leaves the house. She goes to the local gun store and purchases a gun. Before she comes back to the house—three hours later—she decides to get dinner with her friend to try to feel better from the incident she just witnessed. After sharing many laughs with her longtime friend, she decides it’s time to go back to the house to kill her husband. Upon arriving home, Sofia shoots her husband in the head, killing him. Under these facts, Sofia could be charged with murder.
Another way an individual can commit manslaughter is similar to common law involuntary manslaughter. In Florida, a person can commit manslaughter if her or she unintentionally kills another from culpable negligence or recklessness, and without lawful justification. In Florida, culpable negligence is defined as a disregard for human life while engaging in wanton or reckless behavior. In order to sustain a conviction, the State must prove: (1) a death occurred because of the Defendant’s actions; (2) the Defendant’s actions were either inherently dangerous to others or done with a reckless disregard to human life; and (3) that the Defendant had knowledge or should’ve had knowledge that his or her actions were a threat to others. Frequently, the State will try to argue that the charges should be enhanced to murder due to the underlying circumstances. Thus, to ensure that you’re charged with the right crime—and not with a more serious crime—it’s important to retain an experienced criminal defense firm to protect you.
Conspiracy, solicitation, and attempt crimes are called inchoate crimes. Under Florida Statute 777.04(3), an individual commits the crime of conspiracy if the person “agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy.” Simply put, the crime of conspiracy is an agreement by two or more persons to commit a crime, with the intent to commit a crime. Under Florida law, the prosecution must prove both the agreement and actual intent to commit a crime. It’s noteworthy to highlight the fact that conspiracy itself is a separate and independent offense from the crime the conspirators are seeking to carry out. In Florida, the prosecution does not have to illustrate that the accused did an act in furtherance of the conspired crime. The agreement and intent alone are enough to impute criminal liability.
The penalties for conspiracy may be severe depending on the offense that was conspired to be committed. Under Florida law, criminal conspiracy is ranked one level below the offense severity ranking that would’ve been given to the object offense under the Florida Criminal Punishment Code. For example, if you conspired to commit murder—which is given a level 10 offense severity ranking under the Florida Criminal Punishment Code—the conspiracy offense will be assigned a level 9. Therefore, the Defendant will be sentenced according to the offense point value given to a level 9.
Below are some noteworthy defenses to the crime of conspiracy:
- Merely aiding and abetting;
- Merely being present at the scene of the criminal transaction;
- Lack of agreement to commit the same crime;
- Minimal involvement.
Under Florida Statute 777.04(2), “a person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation.” To solicit means to ask earnestly or to try to induce another individual to engage in specific conduct.
Solicitation doesn’t require the Defendant to take any action in furtherance of the crime solicited. The crime of solicitation is completed as soon as you solicit the other individual to commit the crime. Consequently, whether or not the other person actually goes through with the crime is irrelevant. It is a defense to solicitation to persuade the other individual to forfeit the crime or to prevent the crime from being executed.
- For example, Donnie can’t stand his wife because all she does is complain when he comes home from work. Due to this fact, Donnie contacts a shady friend from his past named Bill and encourages him to kill his wife. Donnie doesn’t pay Bill nor does he do anything to assist with the murder. Bill never kills Donnie’s wife and Donnie’s wife continues to complain every day. Based on these set of facts, Donnie can be charged with criminal solicitation.
If you have any further questions or want to set up a consultation, please e-mail the Joshi & Schisani Law Firm at firstname.lastname@example.org or contact our office at 407-661-1109.