First degree murder attorney, death penalty in Florida, second degree murder lawyer, third degree murder, DUI manslaughter
In Florida, murder is divided into degrees. The most serious is first degree murder. We will discuss the death penalty for first degree murder. Also, we will talk about second degree murder, third degree murder and dui manslaughter. A Florida state court prosecutor may prove first degree murder in two different ways. One is premeditated murder and the other is felony murder.
Premeditated first degree murder
To prove it, the state must show beyond all reasonable doubt that:
The victim is dead, the death was caused by the criminal act of the defendant and there was a premeditated killing of the victim. There is no fixed amount of time under Florida law for proving premeditation.
First degree murder under Florida felony murder
To prove it, the state must show beyond all reasonable doubt that:
The victim is dead, the death happened as a consequence of and while the defendant was engaged in a forcible felony (attempting to commit a forcible felony or acting as an accomplice suffices here) and the defendant was either the actual perpetrator OR someone else killed the victim but the defendant and the person who killed the victim were principals in the crime.
Note that the state of Florida does not have to prove a premeditated design to kill or intent to kill with felony murder.
Principal theory for first degree murder
What is the principal theory under Florida law? Generally, if the defendant helped another person to commit a crime, the defendant is on the hook for whatever happens IF the defendant had a conscious intent that the underlying criminal act be done (not the murder) and the defendant did something to help out – aid or abet, encourage, assist, etc. For instance, if you and I go to rob a bank and you pull the trigger and shoot the clerk, I could be convicted of felony murder under the principal theory.
Doctors charged with first degree murder by distribution, unlawful distribution of drugs
Some pill mill doctors have been charged with first degree murder for unlawful distribution of a controlled substance. Note there is no premeditation requirement for first degree murder by distribution. The drug must be proven to be the proximate cause of the death of the user. Sometimes, the victims in these cases have other drugs in their system. Sometimes, the prosecutor may have difficulty linking the pills that were actually prescribed by the doctor to the ones that actually caused the death of the victim.
Florida's Death penalty statute found unconstitutional says the United States Supreme Court in Hurst
Florida's death penalty statute was struck down by the United States Supreme court in a case called Hurst.
The U.S. Supreme Court said the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.
Florida's death penalty statute said that a person may be sentenced to death if a judge makes findings that the person should be punished by death. Florida's unconstitutional death penalty statute set out the procedure:
The sentencing judge holds an evidentiary hearing before the jury. The jury makes a recommendation, by majority vote, as to death or life. The jury recommendation is advisory only. There is no requirement that it be unanimous. Regardless of the jury recommendation, the judge is supposed to weigh the aggravators and mitigators and make his own decision.
Note Mr. Hurst had to go all the way to the U.S. Supreme court to get his death sentence overturned. The Florida Supreme Court denied his request that the sentence violated the 6th amendment in light of a case called Ring v. Arizona. Generally, in Ring, Arizona's capital sentencing scheme allowed the judge, instead of the jury, to find facts necessary to sentence a person to death.
Florida’s capital sentencing scheme violates the Sixth Amendment in light of Ring.
In applying Apprendi v. New Jersey, the U.S. Supreme Court said that "Any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury."
Florida's defective death penalty statute requires not the jury but a judge to make the critical findings necessary to impose the death penalty.
Florida law provides that if the death penalty is ever found to be unconstitutional, the defendant's sentence will be converted to a life sentence. Most likely, all 390 people currently on death row will have their sentences commuted to life in prison without the possibility of parole. They will not get a new trial based on Hurst.
Florida's NEW death penalty statute, what does it say, what are the potential challenges
After Hurst, the Florida legislature quickly moved to re-write the death penalty statute. On March 7, 2016, Governor Scott signed it into law. The new death penalty scheme in Florida violates the 8th amendment to the U.S. constitution as well as Florida's counterpart. There will be more challenges to Florida's death penalty statute. Why? The current law says the death penalty can be imposed if at least ten jurors vote for it. Also, all twelve jurors must identify and agree on at least one aggravating factor. At oral argument at the Florida Supreme Court, post-Hurst and post-new death penalty statute, Justice Pariente and Justice Quince suggested that the new statute is unconstitutional. "If only one aggravator is, in this state, all that is needed to put someone to death, we have a serious Eighth Amendment problem," Justice Barbara Pariente said. In fact, Judge Milton Hirsch, out of Miami, has already ruled Florida's new death penalty statute unconstitutional. The order is here. Check out Justice Breyer's kick-ass dissent in Glossip here.
What makes a first degree murder case in Florida a death penalty case?
The state can seek the death penalty in a first degree murder case where there is evidence of at least one aggravating circumstance. As of 2013, there are sixteen aggravating circumstances in Florida. They are the only bases for the state to seek the death penalty. Aggravating circumstances are statutory reasons the state attorney uses to try to justify imposing the death penalty. Even if there is a finding of an aggravating circumstance, that does not, in and of itself, support imposition of the death penalty. Mitigation must be taken into account. The issue is whether the mitigation outweighs the aggravating circumstances.
What kind of criminal case in Florida is NOT a death penalty case?
The state of Florida cannot seek the death penalty in every case. The defendant has to be charged with first degree murder. Even if the defendant is charged and convicted of raping a child and beating him senseless, that offense is not punishable by death. At the time of the offense, if the defendant was under 18 years old, the state cannot seek the death penalty. Also, the death penalty cannot be sought if the defendant is charged with felony murder and was a minor participant in the underlying felony and did not do any act that would have shown intent to bring about or condone a killing.
Florida department of corrections cannot execute anyone who is mentally retarded. That is a clear violation of the 8th amendment prohibition against cruel and unusual punishment.
What are the aggravators in Florida that can allow the lawyers at the state attorney's office to seek the death penalty?
Florida law limits the aggravating circumstances to those specifically listed in the statute. The state needs to prove only one aggravating factor to meet the minimum statutory threshold of death eligibility. However, the factor must be proven beyond a reasonable doubt. As of 2015, there are 16 aggravating circumstances.
The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.
A withhold of adjudication does not count toward this aggravator. Also, misdemeanor convictions do not count. Being under a sentence of imprisonment includes serving a prison sentence, being on probation, being on community control or an escapee from prison.
The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
Withhold of adjudications do not count. Juvenile adjudications do not count either.
The defendant knowingly created a great risk of death to many persons.
The state has to prove:
The defendant knowingly committed some act
That act involved conduct surrounding the capital felony
That act caused more than three people, not including the victim of the capital felony, to be placed at risk of death
The death of those people must have been likely or highly probable
During the course of a felony
Capital lawyers call this the “auto agg”.
The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing or discharging of a destructive device or bomb.
The “auto agg” circumstance also includes flight following the commission or attempted delineated felony. It also may apply during an extended period of time after the commission of the underlying felony.
Avoiding arrest or affecting an escape from custody
The crime for which the defendant is to be sentenced was:
Committed for the purpose of avoiding or preventing a lawful arrest, OR
Committed for the purpose of effecting an escape from custody
Murder attorneys sometimes call this the “witness elimination” aggravator. This is so even though the words “witness elimination” are not in the statute or the jury instruction. Witness elimination relates to a killing to avoid arrest or detection. The sole or dominant motive must have been to eliminate the witness. Typically, this aggravator is applied to the murder of a cop or a witness to a crime who could be a witness against the defendant.
Capital felony was committed for pecuniary gain
The killing must be an integral step in obtaining sought after monetary gain. An issue sometimes is whether the pecuniary gain is an afterthought. Often there is a doubling issue too.
The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
This is very much like the avoiding arrest aggravator. The dominant motive for the killing must have been to disrupt a government function. Could double with law enforcement or killing a public official. The aggravator is supposed to apply to political assassinations or terrorist acts.
The capital felony was especially heinous, atrocious or cruel.
“Heinous” means extremely wicked or shockingly evil.
“Atrocious” means outrageously wicked and vile.
“Cruel” means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.
The kind of crime intended to be included as heinous, atrocious, or cruel is one accompanied by additional acts that show that the crime was conscienceless or pitiless and was unnecessarily torturous to the victim.
Post-mortem acts don't count. It does not apply to sleeping or unconscious victims.
Even a quick, instantaneous death could qualify for EHAC. It depends on the facts leading up to the death. It is based on what the victim perceives. Look at suffering before. For instance, strangulation before is EHAC. Multiple stab wounds could be EHAC. Kidnapping before could be EHAC. Burying someone alive is EHAC.
The capital felony was committed in a cold, calculated AND premeditated manner, without any pretense of moral or legal justification.
This aggravator involves a heightened level of premeditation, demonstrated by a substantial period of reflection.
Killing must be the product of cool and calm reflection
[Not prompted by emotional frenzy, panic or fit of rage]
There must be a careful plan or pre arranged design to commit the murder
[This plan must have existed before to the fatal incident]
The killing must have been done with no pretense of moral or legal justification.
The victim of the capital felony was a law enforcement officer engaged in the performance of his official duties.
The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim's official capacity.
The victim of the capital felony was a person less than 12 years of age.
The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim.
The capital felony was committed by a criminal street gang member.
The capital felony was committed by a person designated as a sexual predator or a person previously designated as a sexual predator who had the sexual predator designation removed.
The capital felony was committed by a person subject to an injunction.
Who decides whether aggravating or mitigating circumstances warrant the death penalty for first degree murder in Florida?
In Florida, the jury is instructed on aggravating and mitigating circumstances and how to weigh them. They may recommend death or life without the possibility of parole. However, the Florida trial judge makes the final decision after the jury makes their recommendation.
How do criminal defense lawyers fight for their first degree murder clients who are facing the death penalty?
Pretrial motions should be filed in every first degree murder case.
They may relate to violations of 4th, 5th, 6th, 8th and 14th amendments to the United States constitution. For instance, if there was a bad search and or bad seizure, that would fall under the 4th amendment. The 5th amendment issues include the right to remain silent and violations of Miranda. 6th amendment issues include a violation of the right to counsel. 8th amendment bars cruel and unusual punishment and the 14th amendment includes due process claims, the right to notice and a hearing.
Also, motions in limine should be filed in every case. A motion in limine may ask the trial judge to keep out certain information that does not rise to a constitutional level, but should not come into evidence based on the Florida evidence code or a statute. In murder cases, corpus delicti is an important issue. The Latin phrase means "the body of the crime." Generally, the government must present evidence that a crime has been committed before any confession or admission by the defendant is admitted into evidence. The state has to independently establish the corpus before the defendant's statements are admitted. The corpus delicti rule seeks to ensure that a defendant is not convicted solely on the basis of a false confession.
A motion in limine may also ask the judge to admit certain evidence.
Criminal defense lawyers fight for their first degree murder clients at trial.
Preparation for a first degree murder case typically takes one to two years. During that time, a criminal lawyer may have to conduct over one hundred depositions, consult, hire and depose experts (ballistics, blood spatter, mental health, shaken baby syndrome, post traumatic stress disorder or PTSD, DNA, fingerprint experts, neuropsychologists), have investigators do independent work interviewing witnesses, taking photos, taking video, conducting background checks on all witnesses, listed and potential, etc. A focus group should be conducted in every murder case. A focus group is like a mock trial, where a private trial is conducted. The "potential jurors" are people from the locale where the murder is being prosecuted. It is videotaped. The potential jurors tell you what they are thinking about the evidence, witnesses, videos, etc. I have used them and the information learned from them has been invaluable.
Mitigation is telling the client's story with an emotional tone that evokes empathy.
In using mitigation to get a life sentence instead of death, the murder attorney is only limited by his imagination. The chronology of the client's life, his parents, his siblings, his grandparents, how they affected him is a starting point. Often, the people charged with capital murder are damaged. The legal diagnosis may be one of a mental illness, brain damage, PTSD or trauma. However, the basis of the diagnosis is the mitigation. Where is the human empathy? That is what resonates with people.
Suffering, shame, pride, joy, dignity, love and humiliation. These are the human empathy factors that people need to feel to have mercy.
Lawyers are logical. We like charts and want to look good. However, we need to touch people in their hearts if we are going to connect with people and convince them to have mercy for our clients. We can't argue anyone to care.
For a great story, you need fear and pity. The jury should feel fear because they recognize, in the accused, their own dilemmas.
In the closing argument, the objective should be empathy.
What is mitigation under Florida law?
“A mitigating consideration is anything shown by believable evidence that, in fairness or in the totality of the defendant’s life or character, extenuates or reduces the degree of moral culpability for the crime committed or that reasonably serves as a basis for imposing a sentence less than death.”
Jury instruction on mitigating factors
A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. A mitigating circumstance need only be proved by the greater weight of the evidence, which means evidence that more likely than not tends to prove the existence of a mitigating circumstance. If you determine by the greater weight of the evidence that a mitigating circumstance exists, you may consider it established and give that evidence such weight as you determine it should receive in reaching your conclusion as to the sentence to be imposed.
§ 921.141(6), Fla. Stat. lists eight mitigating circumstances
(a) The defendant has no significant history of prior criminal activity.
However, the state can introduce evidence of prior uncharged acts.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
This is not an insanity defense. An extreme mental or emotional disturbance is less than insanity but more than the emotions of an average person, however inflamed.
(c) The victim was a participant in the defendant’s conduct or consented to the act.
Think of the duel between Alexander Hamilton and Burr.
(d) The defendant was an accomplice in the capital felony committed by another person and his or her participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
External forces are the duress. Look at age and intelligence level.
(f) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
You can show immaturity, low iq, or senility. This mitigator is not necessarily just for young people.
It works in conjunction with cognitive deficits, e.g., brain damage and dementia.
(h) The existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty. This is the catch all.
First degree murder lawyers file motions relating to constitutional challenges to aggravating circumstances.
To preserve the issues for every appeal – direct, collateral, federal habeas -the 1st degree murder lawyer has to federalize the issues. Specifically, the murder attorney should list fourth amendment, fifth amendment, sixth amendment, eighth amendment, fourteenth amendment citations in the motions along with any state court arguments. Ongoing challenges include moving to dismiss the indictment for failure to list aggravators, lack of unanimity for finding an aggravator, lack of unanimity for recommending death, and the judge determining the sentence, not the jury.
First degree murder lawyers file motions relating to aggravating circumstances.
A 1st degree murder attorney may file a motion to prevent the application of all aggravating circumstances.
What are mitigating circumstances for a death penalty case in Florida?
Unlike aggravating circumstances, mitigating circumstances are only limited by the criminal defense lawyer's imagination. Mitigators can be just about anything. A mitigating circumstance is anything shown by believable evidence that in fairness or in the totality of the defendant's life or character, extenuates or reduces the degree of moral culpability for the crime committed or that reasonably serves as a basis for imposing a sentence less than death.
Who has to prove a mitigating circumstance and what is the burden of proof?
The defendant through his 1st degree murder lawyer have to prove the mitigating circumstance by the greater weight of the evidence. Note this is considerably less than the burden of proof typically associated with criminal cases, beyond a reasonable doubt. The greater weight of the evidence means that it is more likely than not.
How are prisoners executed in Florida for first degree murder if the death penalty is imposed?
The death penalty has been put on hold since the U.S. Supreme Court case of Hurst. However, lethal injection is (for now) a constitutional method of execution and is how people are executed in Florida. The electric chair, “Ole Sparky” has not been used in Florida since 1999. Allen Lee Davis was the last person to die in Florida's electric chair. As of this writing in 2013, seventy eight people have put to death in Florida since 1979.
Second degree murder in Florida v. first degree premeditated murder
What is the difference between first degree murder and second degree murder in Florida?
First degree murder typically (not always) requires some degree of premeditation and intent to kill. The state does not need to prove any intent to cause death with a second degree murder charge in Florida. Second degree murder requires the state of Florida to prove the following three elements beyond a reasonable doubt:
1. The victim is dead.
2. The death was caused by the criminal act of defendant.
3. There was an unlawful killing of victim by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
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 Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.
Act in the Heat of passion on legally adequate provocation
Second degree murder may be a heat of passion killing. For instance, a husband walks in on his wife having sex with another man and he whacks both of them. That may be charged as second degree murder. If it was done with a firearm, a defendant could be charged with second degree murder with a firearm. This issue can be raised to defend a second degree murder charge. The jury instructions for second degree murder in Florida address this issue. The issue is whether the defendant did not have a depraved mind without regard for human life because he acted in the heat of passion based on adequate provocation.
In order to find that the defendant did not have a depraved mind without regard for human life because he acted in the heat of passion based on adequate provocation:
a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that caused death; and
e. the defendant was, in fact, so provoked and did not cool off before he committed the act that caused the death of victim.
If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because he acted in the heat of passion based on adequate provocation, you should not find him guilty of Second Degree Murder.
What are valid defenses to murder in Florida?
Stand your ground, also called self defense is probably the most common defense to second degree murder. TODDI (The other dude did it), lack of evidence and lack of identification are all valid defenses under Florida law for murder.
Third degree felony murder lawyer Florida
What is 3rd degree felony murder?
When felony murder is charged, it sometimes involves the following scenario:
Two or more people agree to commit a crime. Let's say they decide to rob a convenience store. They rob the clerk. One person shoots the clerk. The other co-defendant had nothing to do with the actual shooting of the clerk. However, the other co-defendant could still be held responsible for the killing even though he did not pull the trigger. The government does not have to prove the killing was perpetrated with a design to effect death.
What's another scenario for a 3rd degree felony murder case?
The convenience store robbers are trying to get away. If the killing happened when they were fleeing the immediate scene of the crime, that could result in a third degree felony murder charge. Let's say that one co-defendant killed the clerk while fleeing the immediate scene. The other co-defendant, under Florida's principal theory, discussed above, could be convicted of felony murder.
DUI manslaughter lawyer, Florida
Defenses – How can I win a DUI manslaughter charge in Florida?
Can the government prove that you were driving or in actual physical control of a vehicle?
If the government cannot prove you were driving or in actual physical control of a vehicle, you can be found not guilty of DUI manslaughter. Sometimes clients say – I spoke with the police. I did so on scene. I told them I was driving. They never saw me driving or saw me behind the wheel. If your statements are the only evidence of you driving or in actual physical control of a vehicle, that may be a valid defense to DUI manslaughter based on Florida's accident report privilege and/or corpus delicti.
Were Miranda rights read to you?
Police do not have to read you your Miranda rights. Ever. This is perhaps one of the most misunderstood areas in criminal law today. However, if they don't read you your Miranda rights, your statements may not be admissible in evidence. For purposes of the accident report privilege, any statements you make during the accident portion of the investigation are not admissible in any civil or criminal proceeding. That means any questions that you answered before Miranda was read, understood and knowingly intelligently and voluntarily waived by you will not be admissible at trial. If the government only has evidence of your driving or actual physical control of the vehicle from your own statements, that may be a valid defense to DUI manslaughter charges in Florida. Corpus delicti, as discussed above, may also be a valid defense.
Will the blood alcohol level be admissible at trial? Can the blood results be thrown out before trial?
A motion to suppress the blood alcohol results should be filed in every single DUI manslaughter case where there is an issue. If the motion to suppress the blood alcohol results is granted, the blood results are thrown out. If the blood results are thrown out, it's very difficult for the government to go forward on a DUI manslaughter charge. Sometimes, the government will offer a misdemeanor simple DUI or even drop all charges if the blood results are suppressed. The fancy Latin word for dropping the case is “nolle prosse”. If the defendant is successful on the motion to suppress the blood results, it usually means he doesn't have to go to trial. If the defendant does not have to go to trial, he doesn't have to spend several thousand dollars on expert witnesses for retrograde extrapolation and accident reconstruction.
What was your blood alcohol or blood drug level at the time of the accident?
Note that I did not say what was your breath alcohol level at the time of the accident? In almost all DUI manslaughter cases, blood is taken. It's very rare that you see a breath alcohol level on a DUI manslaughter case in Florida. Why is that? Because if someone dies in a car accident, the police can forcibly take your blood if they suspect you are impaired by alcohol and/or drugs.
Determining what your blood alcohol level or blood drug level was at the time of the accident may require retrograde extrapolation. The defendant may need to hire an expert to say what the blood-alcohol level was at the time of the accident. The blood is always drawn later. As time passes, the blood alcohol level may be going up or going down. One of the factors is when the defendant had the last drink.
Did the defendant cause or contribute to the accident?
Looking at and analyzing the accident scene is of the utmost importance. Looking at an analyzing the vehicles in the accident is also important. If causation is an issue, the defense may need to hire an accident reconstruction expert. The government will have expert witnesses to prosecute the defendant. The defense will have to prepare longer and harder than the State. Also, the defense needs to have better experts than the state to have a fighting chance to win the DUI manslaughter case.
Causation – what if I didn't cause or contribute to the accident that killed the victim?
The defendant's operation the vehicle does not need to be the only cause of the DUI manslaughter. If there's any deviation of a lack of care on the part of a driver under the influence to which the fatal accident can be attributed to, that can be enough to convict. That last statement comes directly from the Florida Supreme Court case of Magaw v. State. The government must prove that the defendant's operation of the vehicle caused or contributed to the cause of the victim's death. That is not to say the defense cannot present evidence to showing someone or something else caused the death. Also, the defense may request what's called an “intervening cause” jury instruction. As discussed above, the defense may, through lay witnesses, expert witnesses, photographs, video, investigation, show that someone else or something else caused the accident and the defendant did not contribute to the accident in anyway.
What does the government have to prove to get a DUI manslaughter conviction in Florida?
The State must prove the defendant drove or was in actual physical control of a vehicle, and while driving or in actual physical control of the vehicle, the defendant was under the influence of alcohol and/or drugs to the extent that his normal faculties were impaired or the defendant had a blood or breath alcohol level of 0.08 or higher. Last, as a result, the defendant caused or contributed to the cause of the death of the victim.
How much prison time is a defendant facing for DUI manslaughter?
DUI manslaughter charges are the most serious DUI charges. Generally, if convicted, the defendant is facing up to 15 years in prison. Sometimes a person may fail to render aid at the scene as required by Florida law. If the defendant knew or should have known that there was an accident but they fail to give information or render aid, it's a first-degree felony. The maximum penalty for a first degree felony is 30 years in prison.
Additionally, there is a minimum mandatory prison sentence of four years upon conviction for DUI manslaughter in Florida. Typically, prison sentences far exceed the four year minimum mandatory. That is, in part, because of the criminal punishment code sentencing guidelines system we have in Florida. There are mandatory victim injury points which adds to the score sheet. There's also a mandatory permanent drivers license revocation upon conviction for DUI manslaughter in Florida.
Depending on the defendant's prior record, the guideline range for DUI manslaughter in Florida will typically be somewhere in the neighborhood of 10 to 13 years Florida state prison.
What about lesser included offenses?
DUI with serious bodily injury and regular simple DUI are what's called necessarily lesser included offenses. The judge must instruct the jury on the elements of these lessers. Vehicular homicide is not a necessarily included lesser. However, it is a lesser included offense if the information or indictment alleges that the defendant operated a vehicle in a reckless manner likely to cause death or great bodily injury to another. Generally, if a defendant is convicted of a lesser included offense, he or she would not be facing as much prison time.
DUI manslaughter charges are difficult cases
There are no winners in DUI manslaughter cases. Often times, the defendant is someone with no prior record. Sometimes, they may be very young. They're facing many years in prison. Whatever prison time they end up doing, the families of the victims still grieve. Their loved one(s) never comes back. The families of the defendant grieve too. Their loved one may go away to prison for 15 years or longer if he failed to render aid.
Other consequences of a DUI manslaughter conviction in Florida
Plan on getting sued for wrongful death if you're arrested and charged with DUI manslaughter in Florida. Being a convicted felon, you have no right to own or possess a firearm, vote, or run for public office, among other things. It will likely affect your reputation and career opportunities for the rest of your life. A felony conviction may also affect your family.
How long until they arrest me for DUI manslaughter in Florida?
It takes time for the blood results to come back. You probably spent the night at the hospital and were released. Not so fast. Police may not get the blood-alcohol and/or blood-drug results for weeks or even months. The police also have to file paperwork with a judge before they get your medical records. The defendant has a right to notice and a hearing regarding the seizure of his medical records. If the police don't follow proper procedure in getting your medical records, that may be another possible defense to get the blood-alcohol or blood-drug results thrown out. In general, it may take days, weeks or even months before you get arrested in Florida for DUI manslaughter charges. You should lawyer up before you get arrested.
For more info about DUI manslaughter charges in Florida, you can order my book “Avoiding or Surviving a Florida DUI” on amazon.com.
Abogado para cargos de asesinato premeditado en primer grado en Florida
Para demostrarlo, el Estado debe demostrar más allá de toda duda razonable, que:
La víctima está muerta, la muerte fue causada por el acto criminal del acusado y este fue un asesinato premeditado de la víctima.
Asesinato en primer grado, asesinato estatutario (Felony murder)
Para demostrarlo, el Estado debe demostrar más allá de toda duda razonable, que:
La víctima ha muerto, la muerte se produjo como consecuencia de y mientras el acusado estaba involucrado en un delito grave forzoso (tratando de cometer un delito grave por la fuerza o de actuar como cómplice basta aquí) y el acusado era o el autor material o alguna otra persona mató al víctima, pero el acusado y la persona que mató a la víctima fueron los directores en el crimen.
Ten en cuenta que el estado de Florida no tiene que demostrar un diseño premeditado para matar o intención de matar con el delito de homicidio estatutario (felony murder).
La teoría principal para el asesinato en primer grado
La teoría principal se aplica aquí. Por lo general, si el acusado ayudó a otra persona a cometer un delito, el acusado está en el gancho para cualquier cosa que suceda si el acusado tenía una intención consciente de que puede hacer el acto criminal subyacente (no el asesinato) y el acusado hizo algo para ayudar - ayudado o asistido, alentar, ayudar, etc. Por ejemplo, si tu y yo vamos a robar un banco y tu disparas el secretario, yo podría ser condenados por el delito de homicidio estatutario (felony murder) bajo la teoría del principal.
Los doctores acusados de asesinato en primer grado, por la distribución, la distribución ilegal de drogas
Cada vez más, los doctores están siendo acusados de asesinato en primer grado, por la distribución ilegal de una sustancia controlada. Nota que no hay ningún requisito para premeditación del asesinato en primer grado por la distribución. El medicamento debe ser demostrado ser la causa inmediata de la muerte del usuario. A veces, las víctimas en estos casos tienen otras drogas en su sistema. A veces, el fiscal puede tener dificultades para vincular las pastillas que fueron realmente prescritos por el doctor a los que realmente causaron la muerte de la víctima.
Muy pocos abogados criminalistas en la Florida tratan casos de asesinato. Se necesita un cierto tipo de abogado, para tratar casos de pena capital. Son casos que le hacen perder el sueño, por años. Los casos que rondan por el resto de tu vida. Las fotos, el video, el motivo, las mentiras, la verdad, la tragedia. La presión de la defensa de alguien que puede ser realmente inocente es abrumadora. Ellos todavía pueden quedar condenados. Esa es la presión real.
En Florida, el asesinato se divide en grados. El más grave es el asesinato en primer grado. Vamos a hablar de la pena de muerte por asesinato en primer grado, asesinato en segundo grado, asesinato en tercer grado y homicidio por DUI. Un fiscal del estado de Florida puede comprobar un cargo de asesinato en primer grado de dos maneras diferentes. Uno de ellos es el asesinato premeditado y el otro es el asesinato con felonía.
Asesinato en primer grado premeditado
Para demostrarlo, el Estado debe demostrar más allá de toda duda razonable de que:
La víctima está muerta, la muerte fue causada por el acto criminal del acusado y había un homicidio premeditado de la víctima. No hay una cantidad fija de tiempo bajo la ley de Florida para probar la premeditación.
Asesinato en primer grado, según la ley de Florida de homicidio preterintencional (Felony murder)
Para demostrarlo, el Estado debe demostrar más allá de toda duda razonable de que:
La víctima ha muerto, la muerte ocurrió como consecuencia de, y mientras el acusado estaba involucrado en una felonía forzosa (tratando de cometer un delito grave por la fuerza o de actuar como cómplice basta aquí) y el acusado era o bien el autor real o alguien más mató al víctima, pero el acusado y la persona que mató a la víctima eran directores en el crimen.
Ten en cuenta que el estado de la Florida no tiene que demostrar un diseño premeditado para matar o intención de matar con el homicidio culposo.
La teoría principal de asesinato en primer grado
La teoría principal se aplica aquí. En general, si el acusado ayudó a otra persona a cometer un delito, el acusado está en el gancho para cualquier cosa que suceda si el acusado tenía una intención consciente de que podia hacer el acto criminal subyacente (no el asesinato) y el acusado hizo algo para ayudar - ayuda o instigar, alentar, ayudar, etc. Por ejemplo, si tu y yo vamos a robar un banco y tu aprietas el gatillo y disparas al empleado, yo podría ser condenado por homicidio preterintencional bajo la teoría del principal.