F.S. 782.04 Florida Statutes and Case Law

The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)

Title XLVI
CRIMES

Chapter 782
HOMICIDE

View Entire Chapter

782.04 Murder.—

(1)(a) The unlawful killing of a human being:

1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;

2. 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.;

i. Methamphetamine, as described in s. 893.03(2)(c)5.; or

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

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

(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment. If the prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant and file the notice with the court within 45 days after arraignment. The notice must contain a list of the aggravating factors the state intends to prove and has reason to believe it can prove beyond a reasonable doubt. The court may allow the prosecutor to amend the notice upon a showing of good cause.

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) When a human being is killed during the perpetration of, or during the attempt to perpetrate, any:

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

(b) Arson,

(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) Aggravated fleeing or eluding with serious bodily injury or death,

(q) Resisting an officer with violence to his or her person, or

(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,

by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony commits murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:

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

(b) Arson,

(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) Unlawful distribution of any substance listed in sub-subparagraphs (1)(a)3.a.-j. by a person 18 years of age or older, when such substance is proven to be the proximate cause of the death of the user,

(m) Carjacking,

(n) Home-invasion robbery,

(o) Aggravated stalking,

(p) Murder of another human being,

(q) Aggravated fleeing or eluding with serious bodily injury or death,

(r) Resisting an officer with violence to his or her person, or

(s) 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,

is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5) As used in this section, the term “terrorism” means an activity that:

(a)1. Involves a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States; or

2. Involves a violation of s. 815.06; and

(b) Is intended to:

1. Intimidate, injure, or coerce a civilian population;

2. Influence the policy of a government by intimidation or coercion; or

3. Affect the conduct of government through destruction of property, assassination, murder, kidnapping, or aircraft piracy.

History.—s. 2, ch. 1637, 1868; RS 2380; GS 3205; RGS 5035; s. 1, ch. 8470, 1921; CGL 7137; s. 1, ch. 28023, 1953; s. 712, ch. 71-136; s. 3, ch. 72-724; s. 14, ch. 74-383; s. 6, ch. 75-298; s. 1, ch. 76-141; s. 290, ch. 79-400; s. 1, ch. 82-4; s. 1, ch. 82-69; s. 1, ch. 84-16; s. 6, ch. 87-243; ss. 2, 4, ch. 89-281; s. 4, ch. 90-112; s. 3, ch. 93-212; s. 11, ch. 95-195; s. 18, ch. 96-322; s. 1, ch. 98-417; s. 10, ch. 99-188; s. 16, ch. 2000-320; s. 2, ch. 2001-236; s. 2, ch. 2001-357; s. 1, ch. 2002-212; s. 12, ch. 2005-128; s. 1, ch. 2010-121; s. 2, ch. 2012-21; s. 4, ch. 2014-176; s. 9, ch. 2015-34; s. 2, ch. 2016-13; s. 2, ch. 2016-24; s. 24, ch. 2016-105; s. 4, ch. 2017-1; s. 7, ch. 2017-37; s. 2, ch. 2017-107; s. 17, ch. 2018-13; ss. 114, 122, ch. 2019-167; s. 1, ch. 2022-129.

Statutes updated from Official Statutes on: March 07, 2023

F.S. 782.04 on Google Scholar

F.S. 782.04 on Casetext

Amendments to 782.04

Arrestable Offenses / Crimes under Fla. Stat. 782.04

Level: Degree
Misdemeanor/Felony: First/Second/Third

782.04 1a1 - HOMICIDE - MURDER FIRST DEGREE PREMEDITATED - F: C

782.04 1a2 - HOMICIDE - MURDER WHILE ENGAGED IN CERTAIN FELONY OFFENSE - F: C

782.04 1a3 - HOMICIDE - MURDER RESULTING FROM DISTRIBUTION CNTRL SUBS - F: C

782.04 2 - HOMICIDE - MURDER DANGEROUS DEPRAVED WO PREMEDITATION - F: F

782.04 3 - HOMICIDE - MURDER NOT PREMEDITATED DURING SPECIFIC FELONY - F: F

782.04 4 - HOMICIDE - MURDER NOT PREMEDITATED DURING OTHER FELONY - F: S

Civil Citations / Citable Offenses under S782.04

R or S next to points is Mandatory Revocation or Suspension

S782.04 Murder resulting from the operation of a motor vehicle. U.T.C. must be written pursuant to 316.650(1). [See 322.26(1)(a) and 322.28(3)] - Points on Drivers License: 0 R

Annotations, Discussions, Cases:

State v. Pinder
375 So. 2d 836 (Fla. 1979) Cited 103 times
Accordingly, where premeditated murder is charged, but the only evidence to sustain the murder conviction is furnished by proof that the killing occurred as the result of one of the felonies enumerated in section 782.04(1), we hold that the defendant may not be convicted and punished for both the felony murder and the underlying felony. If, however, in the same criminal episode, in addition to the killing, the defendant commits more than one of the felonies enumerated in section 782.04(1), only one of the felonies need be considered the underlying felony. The defendant may be convicted and sentenced for the other felonies since it is only necessary for the state to prove one of the enumerated felonies to support the murder conviction. We recede from State v. Adams only to the extent that it is inconsistent herewith, and we approve the decision of the district court.
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Pena v. State
829 So. 2d 289 (Fla. Dist. Ct. App. 2002) Cited 20 times
The omission of the justifiable or excusable homicide instructions in a murder case can be fundamental, reversible error in some instances.See, e.g., Rojas v. Smith, 552 So.2d 914 (Fla. 1989); Van Loan v. State, 736 So.2d 803, 804 (Fla.2d DCA 1999); Smith v. State, 773 So.2d 1278, 1279 (Fla. 5th DCA 2000). The offense described in section 782.04(1)(a)(3), however, is an unusual form of felony murder. The defendant does not need to intend an act of homicide. In fact, the defendant does not even need to possess knowledge of the drug overdose or to be present when it occurs. If the defendant unlawfully distributes an illegal drug and the distribution results in a death caused by the drug, then the defendant is guilty of first-degree murder under section 782.04(1)(a)(3).
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State v. Ashley
701 So. 2d 338 (Fla. 1997) Cited 34 times
§ 782.04, Fla. Stat. (1993).
PAGE 340
Hurst v. State
257 So. 3d 1202 (Fla. Dist. Ct. App. 2018) Cited 4 times
First-degree murder is a capital felony, and attempted first-degree murder is a felony of the first degree. §§ 774.04(1), (4)(b); 782.04(1)(a), Fla. Stat. (2016). If attempted first-degree murder is committed with a weapon or firearm, the offense is reclassified to a life felony. § 775.087(1), Fla. Stat. (2016). Section 775.082(3)(a) 5., Florida Statutes, sets forth the penalty for a conviction under section 782.04 of an offense that was reclassified as a life felony, when the offender was a juvenile when the crime occurred.
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Mikenas v. State
367 So. 2d 606 (Fla. 1979) Cited 48 times
Since we are here concerned with subsection (3) of 782.04, the second-degree felony murder statute, rather than subsection (1), the first-degree felony murder statute, we need not determine whether the reasoning and rationale in State v. Williams, supra, is correct. We reserve decision on that point until the question is squarely presented. It is sufficient here to hold that there is nothing in the clear language or history of Section 782.04(3) which limits its application to innocent persons killed by one perpetrating or attempting to perpetrate a felony.
PAGE 609
Adams v. State
341 So. 2d 765 (Fla. 1977) Cited 60 times
" 782.04 Murder. —
State v. Williams
776 So. 2d 1066 (Fla. Dist. Ct. App. 2001) Cited 13 times
The crux of this case is the breadth of the phrase "engaged in the perpetration of . . . any felony" in the felony murder statute. The three gradations of felony murder in section 782.04 all make use of the same language in defining the crime. See § 782.04(1)(a)(2), (3), (4), Fla. Stat. (2000).
PAGE 1068
Perry v. State
210 So. 3d 630 (Fla. 2016) Cited 24 times
We begin with a discussion of the Act's changes to Florida's capital sentencing scheme. The most important changes made to the previously existing statutes appear in sections 775.082, 782.04, and 921.141. Ch.2016–13, Laws of Fla. (2016). This Act was adopted shortly after the United States Supreme Court held in Hurst v. Florida that Florida's capital sentencing scheme was unconstitutional because it did not require the jury to determine the facts necessary for the imposition of the death penalty. ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). As we explained in Hurst:
PAGE 635
Standard Jury Instructions in Crim. Cases
636 So. 2d 502 (Fla. 1994) Cited 23 times
APPENDIX can must additional further he the defendant outpatient or INSANITY — PSYCHOTROPIC MEDICATION INTRODUCTION TO ATTEMPTED HOMICIDE JUSTIFIABLE ATTEMPTED HOMICIDE EXCUSABLE ATTEMPTED HOMICIDE ATTEMPTED MURDER — FIRST DEGREE 782.04 777.04ATTEMPTED FELONY MURDER — FIRST DEGREE 782.04 777.04 ATTEMPTED SECOND DEGREE MURDER 782.04 777.04ATTEMPTED VOLUNTARY MANSLAUGHTER 782.07 777.04 Hedges v. State, 172 So.2d 824 See Taylor v. State, 444 So.2d 931 MANSLAUGHTER 782.07 and Hedges v. State, 172 So.2d 824
PAGE 504
Spencer v. State
645 So. 2d 377 (Fla. 1994) Cited 169 times 1 Legal Analyses
Spencer also argues that the standard instruction on first-degree murder is constitutionally deficient because it fails to adequately instruct the jury that a "premeditated design" is a statutory element of first-degree murder. We find no merit to this argument. Section 782.04(1)(a), Florida Statutes (1991), defines premeditated first-degree murder as the unlawful killing of a human being "[w]hen perpetrated from a premeditated design to effect the death of the person killed or any human being." This Court has explained this element of "premeditated design" as
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