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DIFFERENCE between 2ND DEGREE ATTEMPTED MURDER & AGGRAVATED BATTERY W/ WEAPON IN FL ??

Naples, FL |

Let's say the weapon be a bat, aggravated battery with weapon from my view is EXACTLY the SAME charge, what is the difference? If they have different minimums that's just wrong. please answer for my case thanks :)

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Attorney answers 1

Posted

The elements are different. Aggravated Battery can be a lesser included offense of Second Degree Murder.

Here is the Florida Supreme Court promulgated jury instruction:

6.4 ATTEMPTED SECOND DEGREE MURDER
§§ 782.04(2) and 777.04, Fla.Stat.

To prove the crime of Attempted Second Degree Murder, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) intentionally committed an act which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.

2. The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life.

Definitions
An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.

In order to convict of Attempted Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

It is not an attempt to commit second degree murder if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

Contrast that with the jury instruction for aggravated battery:

8.4 AGGRAVATED BATTERY § 784.045, Fla. Stat.

To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.

1. (Defendant)

[intentionally touched or struck (victim) against [his] [her] will].
[intentionally caused bodily harm to (victim)].

Give 2a or 2b as applicable.
2. (Defendant) in committing the battery

a. intentionally or knowingly caused

[great bodily harm to (victim)].
[permanent disability to (victim)].
[permanent disfigurement to (victim)].

b. used a deadly weapon.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

I hope that cleared things up for you.

Sincerely,

James Regan, LL.M, Esq.
http://www.defendme.net

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Florida. Responses are based solely on Florida law unless stated otherwise.

Asker

Posted

"It is not an attempt to commit second degree murder if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose. " that's EXACTLY exactly what the defendant did & they are STILL charging him with not 2nd but 1st degree attempted murder when he backed himself out of the fight without ANYONE comming physically in between the two, he did it on his own & they exchanged brief words & was conscious. I can't believe this, even the police reports state what I just wrote.

Asker

Posted

& the "victim" whom is NOT at all innocent, was NOT knocked unconscious. ** now for the "victims" side they just recently made up that one of the witnesses screamed out "I'm calling the cops" to the defendant & that's why the fight stopped when no one heard her say it, because she didn't. Can someone saying "I'm calling the cops" when the defendant backed out of the fight on his own count??

James Regan

James Regan

Posted

These facts present a jury question. The State has made up there mind, and the case needs to be taken to trial.

Carey Duncan Carmichael Jr.

Carey Duncan Carmichael Jr.

Posted

Get ready for a jury trial.

Asker

Posted

Thanks Carey for answering, I know what that means but what do you mean?

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