Florida Criminal Defense and DUI Defense Blog

11Oct, 21

Second Degree MurderToday, I want to talk about murder.

We’ve all seen plenty of murder on television. We’ve read about plenty of murder. Let’s talk about what murder is in Florida.

Specifically, we’re going to be talking about the different degrees of murder.

Florida actually has more than fifteen statutes defining different pieces of the murder laws. We’re going to focus in on one. We’re going to focus on second degree murder.

Second degree murder is defined in Florida as “the unlawful killing of a human being when perpetrated by an act imminently dangerous to another, and evincing a depraved mind, regardless of human life, although without any premeditated design to affect the death of any particular individual”.

That’s a mouthful, so let’s talk about this.

First of all, “the unlawful killing of a human being”. That means a killing that is not self-defense or otherwise justified, such as defense of others.

“The unlawful killing of a human being when perpetrated by an act imminently dangerous to another, and evincing a depraved mind, regardless of human life”.

Let’s unpack that phrase.

We’re talking about an act “imminently dangerous to another”. That means something that one would expect, ordinarily, would have dangerous consequences to another person. The classic example from law school is firing a gun into a crowd.

“Evincing a depraved mind, regardless of human life”. Well, that phrase means with no regard of human life. That means somebody who commits an act that is obviously evil, that’s imminently dangerous to someone, without the specific intent of causing death.

There was a case here in St. Lucie County this past week that, well, you decide if it meets that description.

We have a gentleman driving a motorcycle, getting onto Interstate 95. We have another gentleman driving a pick-up truck. They didn’t know one another. They quickly decided they didn’t like one another.

The motorcycle was driving in the far left hand lane and the pick-up truck was in the middle lane. The pick-up truck driver made a familiar hand gesture to the motorcycle rider. The motorcycle rider then pulled up and tapped or smacked the tail light of the pick-up truck, and then pulled up alongside on the left.

The pick-up truck driver, according to three different eye witnesses, then jerked the steering wheel hard to the left, hitting the motorcycle rider and then both vehicles hit the guardrail. The motorcycle rider flipped off of the bike, suffered severe injuries and died later that day.

So the question is, is this an accident? Is it vehicular homicide? Is it manslaughter? Is it murder? Is it first degree murder? Is it second degree murder?

First degree murder requires premeditation, which means the pre-planned intention to kill. Unless there’s some prior history with these two people, and further investigation might reveal that, premeditation strikes me as being very difficult to prove.

But if the three eyewitnesses mentioned in the police report are reliable witnesses, who didn’t know either person and just happened to be sharing the Interstate with these two, if they’re telling the truth, then it certainly appears that the truck driver intentionally swerved and intentionally hit the motorcycle.

Now, let’s return to our definition. That seems to be an act imminently dangerous to another. And it seems to be an act without regard to human life, evincing a depraved mind.

The driver of the pick-up truck was arrested by the police and charged with second degree murder. He appeared at a bond hearing the next morning.

And just as a reminder, I think we’ve talked about this before, but anyone in Florida who is arrested is entitled to appear in front of a magistrate within twenty-four hours, so that the magistrate, or judge, can review the arrest report and make a determination whether or not probable cause exists to support the charge, or some lesser charge.

In this case, the magistrate, county court judge, reviewed the police report, listened to argument from the driver’s lawyer, as well as the prosecutor, and made a finding that probable cause did, in fact, exist for a charge of second degree murder.

Then things got really interesting.

The prosecutor then pointed out to the judge that this truck driver was already on probation from an earlier road rage incident in Martin County back in January. And she furnished to the judge a copy of the arrest report in that earlier case, which involved this truck driver getting in a dispute with another driver, pulling a knife on the other driver and stabbing the driver’s tires so that the car couldn’t be driven, or at least not safely.

After considering this, the judge looked at the one hundred thousand dollar bond and raised it to one hundred and fifty, together with house arrest conditions, which means if this guy does bond out, he can go to work, but that’s the only time he can be away from home, and he’s going to have to wear a GPS bracelet.

Those bond conditions are probably academic, because the Martin County prosecutor’s office is almost certain to file a violation of probation against this guy, and I imagine he’ll be denied bond on that.

But here’s a real life example, taken from this community just this week that I think is a very good illustration of, at least on paper, what Florida regards as a murder in the second degree.

We may return to this case, from time to time, as it goes through the criminal court system, and I’ll let you know about the twists and turns.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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