There are degrees of Murder in Florida


As with many crimes in Florida, murder isn't just "plain murder" or the unlawful killing of another human being.  Rather, there are degrees of murder in Florida, based on a variety of case-specific, factors such as the severity of the crime and the amount of pre-planning or premeditation involved.

I have personally tried close to a dozen First and Second Degree Murder cases in Miami-Dade County and throughout Florida over the past 31 years.  Wherever pertinent, therefore, I've included actual case histories to illustrate a particular point or to highlight an effective defense strategy.

Let's take a look at First Degree Murder in Florida:

First Degree Murder in Florida

First Degree Murder Florida is a Capital Offense and has only two possible sentences— a mandatory, minimum term of life in prison or the death penalty.

Pursuant to Fl. Stat. § 782.04(1)(a), the crime of First Degree Murder is committed when a person commits either Premeditated Murder or Felony Murder.

First Degree Premeditated Murder

All "premeditation" means is that the murder was planned out in advance, thought about in advance and, as a result, was an intentional and deliberate act to kill someone.  In State of Florida v. A.L., a recent First Degree Murder case in Miami, for example, the State proved the element of premeditation to the jury through a series of prior "bad acts" and violent interactions between the defendant and the victim over a period of several months before the murder.  But perhaps the classic example involved the notorious "Black Widow," Judy Buenoano, who took out an insurance policy on her husband, James Goodyear, and subsequently and methodically poisoned him with arsenic.  Both examples illustrate premeditation concepts.

There is another type of First Degree Murder in Florida, and that is Felony Murder.

Felony Murder

Under Fl. Stat. § 782.04(1)(a)(2), felony murder is committed when a person kills another human being while engaged in the commission, or attempted commission, of the following statutorily enumerated felonies regardless of whether they intended to kill anybody:

  • Drug Trafficking offense prohibited by § 893.135(1)

  • Arson

  • Sexual battery

  • Robbery

  • Burglary

  • Kidnapping

  • Escape

  • Aggravated child abuse

  • Aggravated abuse of an elderly person or disabled adult

  • Aircraft piracy

  • Unlawful throwing, placing, or discharging of a destructive device or bomb

  • Carjacking

  • Home-invasion robbery

  • Aggravated stalking

  • Murder of another human being

  • Resisting an officer with violence to his or her person

  • Aggravated fleeing or eluding with serious bodily injury or death,

  • Felony that is an act of terrorism or is in furtherance of an act of terrorism

In State of Florida v. M.B., the State charged my client with First Degree Felony Murder as the result of the death of his girlfriend's 5 year old child, who had been left in my client's care.  The underlying offense was aggravated child abuse.   Fortunately, my client was acquitted of First Degree Murder, but ultimately convicted on Second Degree Murder.  

We've discussed homicides that occurred in the "heat of passion" —the jealous husband who walks in on his wife in bed with another man in the Manslaughter section. 


But what about other murders that aren't as spontaneous but lack premeditation?

Second Degree Murder in Florida

This is so-called "depraved mind" murder, when a person is killed with no regard for human life.


Per Fl. Stat. § 782.04(2)-(3), the crime of Second Degree Murder is committed when a person commits either Murder with a Depraved Mind or Accomplice Felony Murder.

The crime of Second Degree Murder is a First Degree Felony in Florida and punishable by up to life in prison, life on probation, and a $10,000 fine.  Because Second Degree Murder scores so high under Florida's guideline sentencing scheme, a defendant who is convicted of Second Degree Murder faces almost 17 years on the low-end of the guidelines (absent then filing of a Motion for Downward Departure).


A note about "10-20-Life" mandatory prison sentences...

Under Florida's 10-20-Life law, a person who uses a firearm to commit Second Degree Murder must be sentenced to a mandatory minimum sentence of 25 years in prison. 

Some common defenses to First Degree (and Second Degree) Murder in Florida


  • Alibi: alleges you didn’t do it, and you weren’t even there.

  • Mistaken identity: Similar to Alibi, but alleges that you were there but wasn’t you.

  • Self Defense/Stand Your Ground: Alleges that you were facing a threat to your life and "met deadly force with deadly force."

  • Not Premeditated: Alleges heat of passion or spur of the moment killing. This is not a complete defense. If you are found guilty for a lesser penalty such as Second Degree Murder there are still penal consequences.

  • Accident: For example, showing friend gun, not realizing bullets in it, gun goes off killing friend.  A viable defense is that there no intent to commit the crime; "that it was just a tragic accident."

The above defenses and many others may be available to you.  Which is why it's critically important to hire an experienced criminal defense attorney to develop an effective defense strategies and hold the State Attorney's Office to their burden of proving the crime of First Degree Murder or Second Degree Murder beyond and to the exclusion of any reasonable doubt.  

There is hope

If you or a loved one is arrested and charged with First Degree Murder or Second Degree Murder in Miami or anywhere in Florida, please call our 24-hour telephone number 305-461-1066 to set up an appointment and free consultation so we can assess your particular case and provide you with the best legal advice on how to proceed.  Your meeting with me will be strictly confidential and subject to the attorney-client privilege.

I want to hear your side of the story.

Rick Hermida

State and Federal Criminal Defense Attorney

55 Merrick Way ~ Suite 212

Coral Gables, Florida 33134

305-461-1116 (Office)

305-461-1066 (24 Hours)

We are solely a Criminal Defense Law Firm.  That's all we do and all we have done in Miami and throughout Florida since 1987.