Homicide/Murder Defense Attorney In Okaloosa County

Black’s Law Dictionary defines homicide as “[t]he killing of one person by another.”

Generally, Florida law divides homicide crimes into two categories: murder and manslaughter.

First Degree Murder
First-degree murder is the only crime punishable by death in Florida. Fla. Stat. § 782.04(1) defines first-degree murder as the unlawful killing of a human being when committed in one of three ways:

1. Premeditated murder;
2. Murder committed by a person engaged in the perpetration of or the attempt to commit certain enumerated crimes;
3. Death resulting from the unlawful distribution of certain substances or mixtures containing certain substances including:
4. Cocaine
5. Opium and derivatives
6. Methadone
7. Alfentanil
8. Carfentanil
9. Fentanyl
10. Sufentanil
11. Other schedule I drugs listed in Stat. § 893.03(1).

In all cases, the punishment for first-degree murder is either death or life imprisonment. If the prosecution intends to seek the death penalty, the prosecutor must give notice within 45 days of arraignment.

The notice must list the aggravating factors the prosecution intends to prove and believes it can prove beyond a reasonable doubt.

Second-Degree Murder
Second-degree murder is differentiated from first-degree murder by the lack of premeditation. The State must prove the following elements beyond a reasonable doubt to achieve a conviction for second-degree murder:

1. The victim is dead.
2. The death was caused by the defendant’s criminal act.
3. There was an unlawful killing of the victim by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

The “act” contemplated in the third element may include a series of relation actions performed pursuant to a singular design or purpose. The “depraved mind” component of the act or acts is proven if the following elements are satisfied:

1. A person of ordinary judgment would know the act is reasonably certain to kill or do serious bodily injury to another.
2. The act is done from ill will, hatred, spite, or an evil intent.
3. The act is of such a nature that the act itself indicates an indifference to human life.

To give an example, the act of pointing a loaded gun at someone and pulling the trigger or plunging a 7-inch knife into someone’s chest have been held to satisfy the “depraved mind” element. Peoples v. State, 251 So. 3d 291, 303 (Fla. 1st DCA 2018).

Second-degree murder is a first-degree felony punishable by up to life in prison. Even if a sentence of life is not imposed, a conviction for second-degree murder will result in 240 points being added to the defendant’s criminal punishment code scoresheet.

Third-Degree Murder
Fla. Stat. § 782.04(4) defines third-degree murder as the unlawful killing of a human being without any intention to kill by a person engaged in certain enumerated felonies including:

1. Trafficking of drugs
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. Throwing, placing, or discharging a destructive device or bomb
12. Unlawful distribution of a schedule I narcotic, cocaine, or opium when such drug is the proximate cause of the user’s death
13. Carjacking
14. Home invasion robbery
15. Aggravated stalking
16. Murder of another human being
17. Aggravated fleeing and eluding with serious bodily injury or death
18. Resisting an officer with violence to his or her person
19. A felony that is an act of terrorism.

Referred to as “felony murder – third degree” in the standardized jury instructions, the prosecution must prove the following elements to sustain a conviction:

1. The victim is dead.
2. While engaged in the commission of, in the attempt to commit, or escaping from one of the listed felonies, the defendant or defendant’s accomplice caused the victim’s death.
3. The defendant was either (a) the person who actually killed the victim or (b) the victim was killed by a person other than the defendant, but both were principals in the commission of the listed felony.

Notably, a conviction for third-degree murder does not require proof that the killing was done with the intent to effect death.

Third-degree murder is a second-degree felony punishable by up to 15-years prison or probation and a $10,000.00 fine.

Felony Murder
Black’s Law Dictionary defines felony murder as a killing that occurs during the commission of a dangerous felony. Fla. Stat. § 784.04(1)(a) describes first-degree felony murder as an unlawful killing committed during the course of certain enumerated felonies including:

1. Trafficking of drugs
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. Throwing, placing, or discharging 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 and eluding with serious bodily injury or death
18. A felony that is an act of terrorism
19. Human trafficking.

The prosecution must prove the following elements to sustain a conviction for first-degree felony murder:

1. The victim is dead.
2. While engaged in the commission of, in the attempt to commit, or escaping from one of the listed felonies, the defendant or defendant’s accomplice caused the victim’s death.
3. The defendant was either (a) the person who actually killed the victim or (b) the victim was killed by a person other than the defendant, but both were principals in the commission of the listed felony.

First-degree felony murder does not require any premeditated intent to kill.

Second-degree felony murder occurs when the victim dies during the course of a defendant’s commission or attempted commission of certain felonies, but the person who actually killed the victim was not involved in the commission of the felony.

An example would be where two defendants commit a home invasion and one defendant is shot and killed by an occupant of the home. In such a case, the surviving defendant would be guilty of second-degree felony murder.

To sustain a conviction for second-degree felony murder, the prosecution must prove the following elements:

1. The victim is dead.
2. The defendant did not kill the victim, but the defendant either committed or aided in the commission of a felony.
3. The victim’s death was caused during the commission of, attempted commission of, or flight from the immediate scene of the felony.
4. The person who killed the victim was not involved in the commission of or attempt to commit the felony.

The felony at the root of second-degree felony murder must be one of the felonies listed in Fla. Stat. § 782.04(3):

1. Trafficking of drugs
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. Throwing, placing, or discharging 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 and eluding with serious bodily injury or death
18. A felony that is an act of terrorism

Manslaughter
Black’s Law Dictionary defines manslaughter as an unlawful killing without malice aforethought. Stated differently, manslaughter is an illegal killing of a human being without a depraved mind and without the intent to kill.

Manslaughter may be committed in three ways: (1) by the intentional commission of an act or acts; (2) by the intentional procurement of an act; or (3) by culpable negligence.

Manslaughter by act means the commission of an intentional act which was not justifiable or excusable and resulted in the death of another.

To procure means to persuade, induce, or prevail upon someone to do something. Manslaughter by intentional procurement means persuading, inducing, or prevailing upon a person to commit an act which resulted in the death of another.

Culpable negligence is more than a failure to use ordinary care towards others and must be gross and flagrant, showing reckless disregard for human life and the safety of others, or of wanton indifference to consequences.

Manslaughter is a second-degree felony punishable by up to 15-years in prison or probation and a $10,000.00 fine. Manslaughter may be elevated to a first-degree felony through the use of a firearm, or whether the victim’s death is both caused by culpable negligence and the victim is either an elderly person, disabled adult, child, law enforcement officer, firefighter, or EMT.

DUI Manslaughter
DUI manslaughter is causing the death of another human being while driving under the influence. To sustain a conviction for DUI manslaughter, the prosecution must prove:

1. The defendant drove or was in physical control of a vehicle.
2. While driving the vehicle, the defendant was either (a) under the influence of drugs or alcohol to the extent his or her normal faculties were impaired, or (b) had a blood alcohol level of .08 or more.
3. As a result of operating the vehicle, the defendant caused or contributed to the cause of death of a victim or unborn child.

Regarding the third element of causation, the Florida Supreme Court has made it clear that “any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice.” Magaw v. State, 537 So. 2d 564, 567 (Fla. 1989).

DUI manslaughter is a second-degree felony punishable by up to 15-years in prison or probation and a $10,000.00 fine.

A 4-year minimum mandatory prison sentence is required. A defendant with no prior record who is convicted of DUI manslaughter will score out to approximately 10.5 years under the Florida Criminal Punishment Code.

DUI manslaughter may be elevated to a first-degree felony if the defendant also (a) knew or should have known the crash occurred, and (b) failed to give information and render aid.

Vehicular Homicide
Vehicular homicide and vessel homicide are the killing of a human being by the operation of a vehicle or vessel in a reckless manner likely to cause the death of, or great bodily harm to another. To prove vehicular homicide, the prosecution must prove:

1. The victim or unborn child is dead.
2. The death was caused by the operation of a motor vehicle or vessel by the defendant.
3. Defendant operated the vehicle or vessel in a reckless manner likely to cause the death of or great bodily harm to another person.

The “reckless manner” element is defined as in willful or wanton disregard for the safety of persons or property. Willful means intentional, knowing, and purposeful.

Wanton means with a conscious and intentional indifference to consequences and with the knowledge that damage is likely to be done to persons or property.

Speed alone is insufficient to sustain the reckless manner element of vehicular homicide. House v. State, 831 So. 2d 1230, 1233 (Fla. 2d DCA 2002). The reckless manner element is often decided based on the specific facts of each case.

For example, in State v. Del Rio, 854 So. 2d 692 (Fla. 2d DCA 2003), the appellate court found the defendant’s conduct of running through a residential intersection without stopping or speeding and killing a woman pushing a stroller did not satisfy the reckless manner element.

Vehicular homicide is a second-degree felony punishable by up to 15-years in prison or probation and a $10,000.00 fine. The crime may be elevated to a first-degree felony if the defendant also (a) knew or should have known the crash occurred, and (b) failed to give information and render aid.

Shawn Lupella is a criminal defense lawyer who knows how to defend his clients against homicide/murder charges and manslaughter charges. If you have been arrested on these charges or believe you are under investigation for these crimes, contact him at (850) 362-6655 for a free consultation over the phone or meet him in person at one of his offices in Fort Walton Beach or Destin, Florida.

Shawn Lupella proudly serves those facing an assault arrest in Okaloosa County, Walton County, and Santa Rosa County; and the communities of Fort Walton Beach, Destin, Niceville, Crestview, Baker, Mary Esther, Navarre, Defuniak Springs, Santa Rosa Beach, Sandestin, and surrounding area throughout the beautiful Emerald Coast.

 

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