JENNIFER PRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jennifer Pray was convicted of third degree felony murder and simple battery. The Fourth District Court of Appeal reversed the felony murder conviction because the jury acquitted Pray of all underlying felonies by convicting her only of simple battery (a misdemeanor), which cannot support a felony murder charge under Florida law.
Pray cannot be convicted of third degree felony murder without a conviction for an underlying felony. Because the jury convicted her only of simple battery (a misdemeanor) and acquitted her of all felony charges, the felony murder conviction must be reversed.
[1] A conviction for third degree felony murder requires a conviction for an underlying felony.
[2] A conviction for third degree felony murder cannot stand when the jury acquits the defendant of the underlying felony.
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Join FLexlaw to unlock all legal intelligence“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 ... aggravated child abuse”
Definition of third degree felony murder under Florida Statute § 782.04, establishing the requirement of an underlying felony
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Join FLexlaw to unlock all legal intelligencePray was charged with third degree felony murder and aggravated battery/assault/child abuse (count II). The jury acquitted her of the underlying felon…
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PER CURIAM.
This is an appeal from convictions for third degree felony murder and simple battery. The defendant/appellant, Jennifer Pray, raises several arguments on appeal but we find that only one has merit.
Pray was convicted of third degree felony murder on count I and simple battery on count II. Pray argues that the trial court erred in denying her motion for judgment of acquittal on the count for third degree felony murder because she was not convicted of any underlying felony to support the conviction. Section 782.04, Florida Statute (1987) defines third degree felony murder as:
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 ... aggravated child abuse, (emphasis added).
The jury acquitted Pray of the underlying felony in count II when it failed to find her guilty of aggravated assault, child abuse or aggravated battery and found her guilty of the lesser included offense of simple battery (a misdemeanor, not a felony). We agree with Pray that without a conviction for an underlying felony she could not be convicted of third degree felony murder. See Mahaun v. State, 377 So. 2d 1158 (Fla.1979.)
The state argues that aggravated assault could have formed the basis of the felony murder since it was not included in the elements of count II and therefore Pray was not acquitted of this charge. We reject this argument, however, because there was no proof to support a conviction of aggravated assault. Assault is' defined in section 784.011 as:
[A]n intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
There was no evidence of the five month old infant victim’s perceptions or feelings and thus there was inadequate proof of an assault.
Accordingly, we reverse the conviction for third degree felony murder and-affirm the conviction for simple battery.
AFFIRMED in part; REVERSED in part.
GLICKSTEIN, WALDEN and WARNER, JJ., concur.
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Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)…comprehended the events preceding the shooting, as well as no direct evidence of Kerlew being put in fear, there was insufficient evidence to establish the assault element that Kerlew was put in fear of the imminent violence. Compare Pray v. State, 571 So. 2d 554 (Fla. 4th DCA 1990) (insufficient proof of assault where there was no evidence of the perceptions and feelings of the five month old victim), with McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980) (even absent testimony of victim regarding state…
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Noel v. State, 705 So. 2d 648 (Fla. 4th DCA 1998)…nce. See §§ 921.0016(3)©, 921.001(6), Fla. Stat. (1993). However, appellant correctly contends that he should not have been convicted of third degree felony murder because the jury acquitted him of the underlying felony of escape. In Pray v. State, 571 So. 2d 554 (Fla. 4th DCA 1990), the appellant argued that the trial court erred when it denied her motion for judgment of acquittal on the felony murder charge because the jury acquitted her of the underlying felony. This court stated, “We agree with [appellan…
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Colon v. State, 730 So. 2d 780 (Fla. 3d DCA 1999)…underlying felony charge would have necessarily resulted in an acquittal of the first degree felony murder charge as well. See Mahaun v. State, 377 So. 2d 1158, 1161 (Fla.1979); Noel v. State, 705 So. 2d 648, 649 (Fla. 4th DCA 1998); Pray v. State, 571 So. 2d 554, 555 (Fla. 4th DCA 1990). Colon also argued on his direct appeal that the trial court fundamentally erred in giving a misleading jury instruction and making an improper comment to the jury. This court per curiam affirmed Colon’s conviction and sent…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mahaun v. State, 377 So. 2d 1158 (Fla. 1979)
- Wodford v. State (Fla. 1st DCA 2024)