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THE LEWIS LAW FIRM, P.A.

Former Prosecutor Ken Lewis

Central Florida Criminal Defense

FLORIDA FIRST DEGREE 

 MURDER DEFENSE 

Why hire  Ken Lewis and  to defend you on a first degree murder charge?   

  • Ken Lewis-former chief prosecutor of homicide division for Orlando and Osceola Counties

  • Over 50 murder trials 

  • Over 200 felony trials

  • Experience in all scientific aspects of a criminal homicide trial 

  • Death penalty trial experience

  • Stand your ground hearing experience

  • Combined 40+ years of legal experience

When it comes to defending a first degree murder charge there is no substitute for experience.  Attorney Ken Lewis was a homicide prosecutor for 8 years and was the former chief homicide prosecutor for Orange and Osceola Counties. Attorney Ken Lewis has tried numerous high profile Central Florida murder cases such as the Cady Way killings. Ken Lewis has had experience with all murder charges pursuant to Florida Statute 782.04 and has experience in all aspects of murder litigation. Just a handful of lawyers in Florida have had over 50 murder trials. If you are convicted of first degree murder in Florida the only legal sentence is life in prison with no parole. Are you willing to take that chance? 

MURDER — FIRST DEGREE Premeditated murder § 782.04(1)(a)(1), Florida Statutes or FIRST DEGREE felony murder §782.04(1)(a)(2)(3) Florida Statutes

How many types of first degree murder are there in Florida?  

First degree murder in Florida can be committed in two ways 1) premeditated murder 2) felony murder 

What is the only possible sentence for both types of first degree murder? 

The only sentence allowed by law if you are convicted of the charge of first degree murder is life in prison with no possibility for parole. There is no distinction if a firearm or other weapon is used and no possibility of parole: life means life! Since first degree murder is considered a capital offense and only prosecutable in Florida by a grand jury indictment it is not scored on a criminal punishment code scoresheet like other murder offenses. §775.082

To prove the crime of first degree premeditated murder, the State must prove the following three elements beyond a reasonable doubt 

1.         (Victim)is dead.

2.         The death was caused by the criminal act of (defendant).

3.         There was a premeditated killing of (victim).

To prove the crime of first degree felony murder, the State must prove the following three elements beyond a reasonable doubt:

1.         (Victim) is dead.

2a         While engaged in the commission of a[n] (felony alleged), [(defendant)] or [(defendant’s) accomplice] caused the death of(victim), or

b.         While engaged in the attempt to commit a[n] (felony alleged), [(defendant)] or [(defendant’s)accomplice] caused the death of (victim), or

c.         While escaping from the immediate scene after [committing] [attempting to commit] a[n] (felony alleged), [(defendant)]  or [(defendant’s)accomplice] caused the death of (victim).

3a.       (Defendant)was the person who actually killed(victim), or

b.         (Victim)was killed by a person other than (defendant); but both (defendant)and the person who killed (victim)were principals in the commission of (crime alleged).

In order to convict the defendant of First Degree Felony Murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.

What are the elements of first degree murder that the state must prove? 

First Degree Premeditated Murder-Florida Law

Defense premeditation arguments for judgment of acquittal (F.R.C.P. 3.380)

           Did you know?  In certain instances shooting someone multiple times is not always first degree murder. 

Premeditation” is the essential element that distinguishes first-degree murder from second-degree murder. Green v. State, 715 So.2d 940, 943 (Fla. 1998). As explained by the Florida Supreme Court, premeditation “is not just the intent to kill; it is ‘a fully-formed conscious purpose to kill. This purpose may be formed a moment before the act but must exist a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.’” Evans v. State, 177 So.3d 1219, 1240 (Fla. 2015)(quoting Bolin v. State, 117 So.3d 728, 738 (Fla. 2013)). Premeditation can be inferred from facts that include: the nature of the weapon used; the presence or absence of adequate provocation, previous difficulties between the parties; the manner in which the homicide was committed; and/or the nature and the manner of the wounds inflicted. Where the evidence presented by the Statefails to exclude a reasonable hypothesis that the homicide occurred other than by premeditaed design, a verdict of first-degree murder cannot be sustained. Green, 715 So.2d at 944.

 

Barnes v. State, 218 So.3d 500 (5th DCA 2017)

In the instant case, the only evidence that would appear to support an inference that the murder was premediated is the fact that the victim was shot multiple times. However, the uncontroverted testimony was that the gunshots were fired in rapid succession. We conclude that the evidence was insufficient to prove premeditation. The fact that a defendant inflicts more than one potentially fatal injury on a victim does not, in and of itself, establish premeditation. For example, in Kirkland v. State, 684 So.2d 732 (Fla. 1996), the evidence established that the victim suffered “a severe neck wound” that consisted of several slashes, causing her to bleed to death. 684 So.2d at 734–35. In addition to the neck wound, there was evidence that the victim suffered other injuries resulting from blunt trauma. Id.at 735. There was evidence that both a knife and a walking cane had been used in the attack. Id.In finding that the State'sevidence was insufficient to establish premeditation, the supreme court stated:

First and foremost, there was no suggestion that Kirkland exhibited, mentioned, or even possessed an intent to kill the victim at any time prior to the actual homicide. Second, there were no witnesses to the events immediately preceding the homicide. Third, there was no evidence suggesting that Kirkland made special arrangements to obtain a murder weapon in advance of the homicide.

         Did you know? In certain instances a close range single shot to the head is not always first degree premeditated murder.

Mungin v. State, 689 So.2d 1026 (Fla.1995)

The Florida Supreme Court held that a shot at close range during a robbery with no witnesses not enough.  Judge in murder case based on circumstantial evidence erred in denying defendant's motion for judgment of acquittal as to premeditation, though state presented evidence that supported premeditation, in that victim was shot in the head at close range, defendant procured murder weapon in advance and had used it before, and the gun required a six-pound pull in order to fire, where evidence was also consistent with a killing that occurred on the spur of the moment, in that there were no statements indicating that defendant intended to kill the victim, there were no witnesses to the shooting, and there was no continuing attack that would have suggested premeditation.

Norton v. State, 709 So. 2d 87, 93 (Fla. 1997)

The State argues that the fact the victim suffered a single gunshot wound to the back of her head is evidence of premeditation. While the nature of the crime and the manner of the wound inflicted may constitute circumstantial evidence of how the killing occurred, it is not sufficient to establish premeditation. The gunshot wound inflicted in this case is also consistent with a homicide committed in the spur of the moment. See Kirkland v. State, 684 So.2d 732, 734 (Fla.1996) (reducing first degree murder to second-degree murder where evidence was consistent with a killing other than by premeditation).

Single gunshot with prior arguing and abuse not enough. Castillo v. State, 705 So.2d 1037, 1038 (Fla. 3d DCA 1998) the victim was found dead in a hotel room with a gunshot wound on the left side of her head. She had been shot from approximately three feet. On the morning of the offense, a maid overheard the defendant and the victim arguing in the motel room. It was discovered that the defendant had a history of physically abusing the victim. When questioned by the police, the defendant gave varying accounts of the offense, but denied any intent to kill the victim. The Third District Court of Appeal concluded: “[A]lthough the State's evidence arguably is consistent with premeditation, it falls short of excluding every reasonable hypothesis of homicide by other than premeditated design.” 

         Did you know?  In Florida strangulation in and of itself is insufficient to find premeditation. 

Florida courts deem evidence of killing by strangulation alone to be insufficient to support a jury finding of premeditation. See Bigham v. State, 995 So.2d 207, 212–13 (Fla.2008); Randall, 760 So.2d at 901–02; Green v. State, 715 So.2d 940, 941, 943–44 (Fla.1998); Hoefert v. State, 617 So.2d 1046, 1048–49 (Fla.1993); Perez–Ortiz, 954 So.2d at 1259. However, evidence of strangulation, in conjunction with one or more additional facts indicating that the killer had time to reflect upon his actions and to form a conscious purpose to kill, justifies submitting the question of premeditation to the jury for its determination. 

 

Stangulation with pattern of strangling women while raping or assaulting them was found not enough to establish premeditation. Hoefert v. State, 617 So.2d 1046, 1048 (Fla.1993). In Hoefert, the court was unable to find evidence sufficient to support premeditation in a situation in which Hoefert established a pattern of strangling women while raping or assaulting them. Evidence was presented in that case indicating that the homicide victim, found dead in Hoefert's dwelling, was likewise asphyxiated. Despite the pattern of strangulation, the discovery of the victim in Hoefert's dwelling, and efforts by Hoefert to conceal the crime, this Court found that premeditation was not established.

         Did you know?  In Florida evidence to conceal a crime does not establish premeditation.  

Efforts to conceal crime the crime does not establish premeditation. Norton v. State, 709 So. 2d 87, 93 (Fla. 1997)The fact that appellant may have taken steps to conceal evidence of a crime does not establish that he committed murder with a preconceived plan or design. See Hoefert, 617 So.2d at 1049 (finding no evidence of premeditation despite pattern of strangulation and efforts by defendant to conceal evidence of crime). Efforts to conceal evidence of premeditated murder are likely to be as consistent with efforts to avoid prosecution for any unlawful killing. Dupree v. State, 615 So.2d 713, 723 (Fla. 1st DCA 1993) 

First Degree Felony Murder-Florida Law §782.04(1)(a)(2)(3) Florida Statutes

A murder in Florida is first degree felony murder when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

a. Trafficking offense prohibited by s. 893.135(1),

b. Arson,

c. Sexual battery,

d. Robbery,

e. Burglary,

f. Kidnapping,

g. Escape,

h. Aggravated child abuse,

i. Aggravated abuse of an elderly person or disabled adult,

j. Aircraft piracy,

k. Unlawful throwing, placing, or discharging of a destructive device or bomb,

l. Carjacking,

m. Home-invasion robbery,

n. Aggravated stalking,

o. Murder of another human being,

p. Resisting an officer with violence to his or her person,

q. Aggravated fleeing or eluding with serious bodily injury or death,

r. 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

s. Human trafficking; or

3. Which resulted from the unlawful distribution by a person 18 years of age or older of any of the following substances, or mixture containing any of the following substances, when such substance or mixture is proven to be the proximate cause of the death of the user:

a. A substance controlled under s. 893.03(1);

b. Cocaine, as described in s. 893.03(2)(a)4.;

c. Opium or any synthetic or natural salt, compound, derivative, or preparation of opium;

d. Methadone;

e. Alfentanil, as described in s. 893.03(2)(b)1.;

f. Carfentanil, as described in s. 893.03(2)(b)6.;

g. Fentanyl, as described in s. 893.03(2)(b)9.;

h. Sufentanil, as described in s. 893.03(2)(b)30.; or

i. A controlled substance analog, as described in s. 893.0356, of any substance specified in sub-subparagraphs a.-h.,

is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.

The Lewis Law Firm murder team has experience handling

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Longwood, Fl. 32779

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Tampa, Fl. 33607

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