Felony Murder

First-degree murder under Florida Statute § 782.04(1)(a), can be proven in one of two ways:

  • first-degree felony murder; or
  • first-degree premeditated murder.

The elements of premediated murder require proof that there was a killing after consciously deciding to do so. The most common defense in these types of homicide cases is that the defendant acted in the heat of passion on legally adequate provocation.

On the other hand, in a felony murder case, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill. The felony murder statute does not require any proof of "premeditation."

In fact, the defendant can be convicted of felony murder in Florida even if the defendant did not actually kill the deceased when the defendant and the person who killed the victim were principals in the commission of a crime. Many felony murder charges involve an underlying crime of burglary, although the statute provides for a long list of crimes.

Attorneys for Felony Murder in Florida

The criminal defense attorneys at Meltzer & Bell, P.A. fight criminal charges for homicide, including premeditate or felony murder, throughout Palm Beach County and the surrounding areas in South Florida.

Contact us to learn more about the different ways that Florida classifies crimes related to homicide including both first-degree murder, second-degree murder, felony murder, and manslaughter.

Call (561) 557-8686 today.


Elements of First Degree Felony Murder

The crime of first-degree felony murder is found in § 782.04(1)(a), Fla. Stat. To prove the crime of First Degree Felony Murder, the State must prove the following three elements beyond a reasonable doubt:

  • The victim is dead;
  • As to the cause of death:
    • While engaged in the commission of the felony alleged, the defendant or the defendant's accomplice caused the death of the victim;
    • While engaged in the attempt to commit a felony alleged, the defendant or the defendant's accomplice caused the death of the victim;
    • While escaping from the immediate scene after committing or attempting to commit a felony alleged, the defendant or the defendant’s accomplice caused the death of the victim.

When the defendant was the person who actually killed the deceased, then it must be proven that the defendant was the person who actually killed the victim.

When the defendant was not the person who actually killed the deceased, then it must be proven that the victim was killed by a person other than the defendant, but both the defendant and the person who killed the victim were principals in the commission of the crime alleged.


Elements of Second Degree Felony Murder

To prove the crime of Second Degree Felony Murder, the prosecutor with the State Attorney's office must prove the following four elements beyond a reasonable doubt:

  • the victim is dead;
  • the defendant was not the person who actually killed the victim, but the defendant did commit or did knowingly aid, abet, counsel, hire, or otherwise procure the commission of the felony alleged.
  • as to the cause, it must be proven that either:
    • the victim's death was caused during and was a consequence of the commission of the felony alleged;
    • the victim's death was caused during and was a consequence of the attempted commission of the felony alleged;
    • the victim's death was caused during and was a consequence of the escape from the immediate scene of the felony alleged and attempt to commit the felony alleged.
  • the person who actually killed the victim was not involved in the commission or the attempt to commit the crime alleged.

Elements of Third Degree Felony Murder

To prove the crime of Third Degree Felony Murder, the prosecutor with the State Attorney's office must prove the following four elements beyond a reasonable doubt:

  • the victim is dead;
  • as to the cause, it must be proven:
    • While engaged in the commission of the felony alleged, the defendant and the defendant's accomplice caused the death of the victim;
    • While engaged in the attempt to commit the felony alleged, the defendant or the defendant's accomplice caused the death of the victim;
    • While escaping from the immediate scene after committing or attempting to commit a felony alleged, the defendant or the defendant’s accomplice caused the death of the victim.
  • the defendant was the person who actually killed the victim; or
  • the victim was killed by a person other than the defendant, but both the defendant and the person who killed the victim were principals in the commission of the crime alleged.

It is not necessary for the prosecutor with the State Attorney's Office to prove the killing was perpetrated with a design to effect death.


Penalties for a First Degree Murder Conviction

In Florida, a conviction for first-degree murder comes with one of two possible sentences:

  • Death; or
  • Life without the possibility of parole.

The prosecutor might decide to waive the death penalty as a sentencing option. If such a waiver occurs, then the sentence after a conviction would be life in prison without the possibility of parole.

If the state does not waive the imposition of the death penalty, then the court will conduct a separate sentencing hearing (called the "penalty phase") if a conviction for first-degree murder occurs at trial.


List of Crimes Perpetrated in Felony Murder Cases

The statute, Florida Statute Section 782.04(2), provides a long list of crimes that can be perpetrated in a felony murder case including:

2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

  1. Trafficking offense prohibited by s. 893.135(1);
  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. Unlawful throwing, placing, or discharging of 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 or eluding with serious bodily injury or death;
  18. Felony that is an act of terrorism or is in furtherance of an act of terrorism, including a felony under s. 775.30, s. 775.32, s. 775.33, s. 775.34, or s. 775.35, or
  19. Human trafficking.

When instructing the jury on felony murder, it is essential that the underlying felony “be defined sufficiently to ensure the accused a fair trial.” Spagnolo v. State, 116 So.3d 599, 604 (Fla. 5th DCA 2013) (quoting State v. Jones, 377 So.2d 1163, 1164 (Fla. 1979) ); see also Tubman v. State, 633 So.2d 485, 485 (Fla. 1st DCA 1994) (recognizing error in failure to instruct on the underlying crime of robbery in connection with the offense of felony murder). Thus, on remand, the trial court must instruct the jury on robbery, the underlying felony for felony murder.


Additional Resources

Section 782.04(2) Florida Statute - Find the murder statute in Florida what explains the penalties for the unlawful killing of another human being including when the crime is perpetrated from a premeditated design or when the crime is committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any of the designated felony offenses such as burglary. Learn more about Section 782.04(3) which prohibits the unlawful distribution of drugs when the substance is proven to be the proximate cause of the death of the user.


Finding a Lawyer for Murder in West Palm Beach, FL

Under Florida law, there are two ways a person may commit First Degree Murder. The first way is First Degree Premeditated Murder. The second way is First Degree Felony Murder.

The attorneys at Meltzer & Bell, P.A. in West Palm Beach, FL, are experienced in fighting a variety of difficult homicide cases including first-degree murder, second-degree murder, and manslaughter charges. 

Call us to learn more about how Florida classifies different types of homicides including first-degree murder, second-degree murder, and manslaughter crimes.


This article was last updated on Wednesday, March 21, 2018.

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