Written by attorney David Allen Brener

Florida's Felony Murder Rule Sweeps With A Broad Brush


"Florida's Felony Murder Rule Sweeps With A Broad Brush", by David A. Brener, Esq.

Florida's felony - murder rule, incorporated into its murder statute, section 782.04, makes it first degree murder when the death of a non-participant occurs during the commission, attempt to commit, or escape from the commission of various enumerated felonies. These crimes include the most frequently committed felonies, such as robbery, burglary, rape, kidnapping, arson, and others. As a consequence, someone who agrees to participate in one of these felonies is deemed responsible under the law if a homicide occurs during the course of the crime. This is true even if the person did not pull the trigger or commit the killing, and even if the homicide was unintended, an accident, or actually committed by a third party, like, for example a police officer, security guard, or homeowner. If the person who is killed is the victim of the underlying crime, an innocent bystander, or anyone other than one of the perpetrators, the crime is first degree murder. If the person who dies is a co-perpetrator, then the proper charge, under Florida law, is felony second degree murder. If a non-enumerated felony is being committted when the killing occurs, like for example grand theft, then the proper charge, under the law, is felony third degree murder. First degree murder is punishable by only two possible sentences: life in prison without parole, and the death penalty. Second degree felony murder is punishable by up to life in prison, with approximately twenty years as the low end of the sentencing range, without any additional charges. Third degree murder charges are rare, and usually are seen as a jury compromise verdict to lesser included charges of felony first degree murder. Florida's felony murder rule applies to not only the killer, but the killer's co-participants in the underlying felony. That is the purpose of this law - to hold people responsible for a homicide which they did not commit because they took the risk associated with committing the underlying crime. The fact that a person did not intend for the homicide to occur, and did not know that someone, be it co-perpetrator or police officer, was going to kill, is no defense. This results in an extremely harsh application of the law, and one that really does not treat people who kill differently than those who do not. It is for this reason that the country which invented felony murder, England, has abolished it, and why a number of states, unlike Florida, have severely limited its application. One recognized legal defense to felony murder in Florida is the independent act doctrine. Florida recognizes a defense to felony murder if the homicide was not committed by the defendant, the defendant did not intend for the homicide to occur, and the killing was not part of the plan and not a reasonably forseeable consequence of the plan to commit the underlying felony. This last part - about what is reasonably foreseeable - is where the problem lies, and where the litigation has centered. Some authorities suggest that when the defendant is aware that firearms are involved in the underlying felony, then the independent act defense is unavailable, even if the defendant did not carry. Thus, the getaway driver and the guy who planned the robbery but stayed home, can be charged and convicted of murder even though violence was not supposed to occur, and are precluded from presenting an independent act defense, if the evidence shows knowledge of a substantial risk of violence. Similarly, a defendant in a high speed chase cannot claim, when a police officer dies, that it was the independent act of the officer of pursuing the defendant at high speed which was the legal cause of the death. The courts have generally taken the view that to permit a defendant in a robbery homicide to defend based on the fact that the co-defendant killed the store clerk with a firearm which the defendant knew the co-defendant was carrying, or to defend because the store clerk killed the co-defendant when confronted by armed perpetrators, would eviscerate the felony murder rule. This reasoning ignores decades of caselaw which requires the trial court to give jury instructions on a recognized defense if there is any evidence to support it. Giving the legal instructions on independent act and allowing the jury to apply the law to the facts, which is precisely what jurys, not judges are supposed to do, would allow some relief, in exceptional cases, from this draconian law. Until this harsh law is repealed, this is the least we should do.

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