Sunday, March 10, 2013


An anonymous caller, his deep voice cloaked in mystery, recently asked a Clearwater criminal defense attorney about valid defenses to homicide. Cue stark film noir music as we glimpse in dread the possible motives for that caller wanting to know about murder done in the heat of passion. 
Do the Florida criminal Courts allow this long held common law defense in murder casesIn Florida a Defendant is allowed to give evidence to a jury that a crime was committed in "the heat of passion."  
However, using this defense often has the immediate apparent drawback of requiring the Defendant to admit the underlying act especially when it is employed as a partial defense to negate premeditation which is required for first degree Murder charges in Tampa Bay, Florida. 

David's painting Death of Marat show the aftermath of a murder likely done with premeditation rather than justifiable homicide that would make it excusable under Florida law in Tampa Bay, Florida.
David, Death of Marat, 1793
Here is the Florida Excusable Homicide Defense statute:
782.03Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.
But Florida Courts have also recognized that the Defense can be broadly used as the following quotes from a case from 1912 which were used in a recent case from 2002:
A sudden transport of passion, caused by adequate provocation, if it suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, may not excuse or justify a homicide, but it may be sufficient to reduce a homicide below murder in the first degree, although the passion does not entirely dethrone the actor’s reason....In a prosecution for murder in the first degree for the unlawful killing of a human being from a premeditated design to effect the death of the person killed, or any human being, the defendant under a plea of not guilty may introduce any relevant and proper evidence tending to show a lack of premeditated design in the admitted killing so as to reduce the offense charged to a lower degree of homicide.
Many of these cases involve family members. In one case a fourteen year old girl scout was accused of killing her mother when asked by her defense attorney of she was mentally ill at the time of the stabbing according to news accounts she said, "I stabbed her because I was mad."
In Florida more than merely being mad would be necessary for effective use of the defense because Florida law requires sudden and sufficient provocation and defines premeditation for murder as the following which is from a Federal Jury instruction that used Florida law:
The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.
Not much time for reflection is required under the Florida law, but there must be at least some instant of time when a decision to kill is made. If you or a loved one face a murder charge a Criminal Defense Lawyer in Clearwater will find the best possible results for you by looking at premeditation as well as a justifiable homicide defense.

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