I found something kind of interesting today that might be worth exploring.
If I am understanding the bit of research that I did, if the cause of the childs death was a single act of aggravated child abuse, it should be merged with the homicide charge and not be used as an underlying felony which would make felony murder unavailable .. Now if there are separate acts of child abuse then felony murder could apply. This is where not having the cause of death could be a critical piece of information. because I wonder if the inability to prove the aggravated child abuse apart from the cause of death, then the SA would have to prove premeditated murder and could not rely on felony murder to get a first degree murder conviction.
There is a lot of information at the link and perhaps there is more I have not found yet, but I thought it was certainly worth looking into anyway.
pdf page 63
More at link
If I am understanding the bit of research that I did, if the cause of the childs death was a single act of aggravated child abuse, it should be merged with the homicide charge and not be used as an underlying felony which would make felony murder unavailable .. Now if there are separate acts of child abuse then felony murder could apply. This is where not having the cause of death could be a critical piece of information. because I wonder if the inability to prove the aggravated child abuse apart from the cause of death, then the SA would have to prove premeditated murder and could not rely on felony murder to get a first degree murder conviction.
There is a lot of information at the link and perhaps there is more I have not found yet, but I thought it was certainly worth looking into anyway.
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One problem the Supreme Court of Florida has periodically had to deal with is the
Legislature’s proclivity to widen the definition of common law crimes based upon the most recent
Legislature’s proclivity to widen the definition of common law crimes based upon the most recent
horrendous murder. The addition of aggravated child abuse to the list of felonies available as an
aggravating circumstance is the most recent example of this problem.
Unlike felony murders such as murder committed during the course of a robbery, which
requires two distinct crimes--robbery and homicide - a homicide that involves aggravated child abuse
may only require one single act - child abuse. The court addressed this problem in [FONT=TimesNewRoman,Italic]Brooks v. State[/FONT].343
In [FONT=TimesNewRoman,Italic]Brooks[/FONT], the defendant caused the death of a child with a single stabbing blow. He argued the
felony-murder rule should not apply under the circumstances, and the State should have been limited
to proving premeditation for a first-degree murder conviction. In analyzing this argument the Court
stated:
Brooks argues on appeal that the trial court erred by finding that he committed
the murders during the course of a felony, which was aggravated child abuse as
defined by statute, and then applying the aggravated child abuse aggravating
circumstance set forth in section 921.141(5)(d), Florida Statutes (2002), during
sentencing. He contends that because the single act of stabbing Stuart formed the
basis of both the aggravated child abuse aggravating factor under section
921.141(5)(d) of the Florida Statutes and the first-degree felony murder charge, the
court should have found that the aggravated child abuse allegation “merged” with the
more serious homicide charge. Thus, according to Brooks, the State should have been
totally precluded from invoking the felony murder doctrine and should have been
limited to proving first-degree murder only on the theory of premeditation for both
murders. Brooks does not merely attack the use of the underlying felony as an
aggravator; he asserts that the state is prohibited from using aggravated child abuse
aggravator; he asserts that the state is prohibited from using aggravated child abuse
as the felony crime. We agree.
The Court went on to explain that it may be possible under different facts for the felonymurder
rule to apply to child abuse cases. But a separate act or acts of child abuse such a striking,
The Court went on to explain that it may be possible under different facts for the felonymurder
rule to apply to child abuse cases. But a separate act or acts of child abuse such a striking,
shaking or throwing must be proven in order to invoke the felony murder rule.344<<
pdf page 63
More at link