Koenig v. State, 5D99-3401.
| Decision Date | 12 May 2000 |
| Docket Number | No. 5D99-3401.,5D99-3401. |
| Citation | 757 So.2d 595 |
| Parties | Jesse Lee KOENIG, Sr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
This is another case which raises an issue under section 775.021(4)(b), Florida Statutes. Specifically, the issue is what constitutes "a lesser offense the statutory elements of which are subsumed by the greater offense." Defendant herein was charged with first degree felony murder with the predicate felony being "aggravated" child abuse. He was charged separately with aggravated child abuse and aggravated manslaughter of a child. Had he been convicted of first degree felony murder, then appellant concedes that under Florida's interpretation of section 775.021(4) in Boler v. State, 678 So.2d 319 (Fla.1996), a conviction also for the predicated felony, aggravated child abuse, would be appropriate. But the jury, obviously finding only "simple" child abuse and not aggravated child abuse, returned a verdict of guilt of third degree felony murder. Still, under the Boler principle, appellant concedes that convictions for both third degree felony murder and its predicate felony, child abuse, would be appropriate.
However, this case is complicated by the fact that the court dismissed the third degree felony conviction upon the State's motion because defendant was also convicted of aggravated manslaughter of a child, a more serious offense. Hence, Florida's law on felony murder is not here involved.
Instead, we have a conviction for aggravated manslaughter of a child under section 782.07(3) () and also for simple child abuse (also defined under section 827.03(3)). Appellant urges that clearly child abuse must be subsumed in the manslaughter charge because the statute criminalizing child abuse was incorporated by reference into the manslaughter statute. We disagree.
The elements of aggravated manslaughter of a child are (1) defendant caused the death of one under eighteen and (2) did so "by culpable negligence under s. 827.03(3)." Section 827.03 criminalizes the willful or culpably negligent "neglect" of a child which causes great bodily harm to a child, making it a second degree felony. Such statute also criminalizes the willful or culpably negligent "neglect" of a child which does not cause great bodily harm, making it a third degree felony. Section 782.07(3), in effect, adds a third "culpably negligent" charge by criminalizing neglect which causes the death of the child, making it a first degree felony. Although section 782.07(3) incorporated section 827.03(3) in its definition, it does so only as said section relates to culpable negligence. Child abuse is not subsumed in a charge of aggravated manslaughter of a child....
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...incorporated section 827.03(3) in its definition, it does so only as said section relates to culpable negligence.Koenig v. State, 757 So.2d 595, 596 (Fla. 5th DCA 2000). See Hare v. State, 114 So.3d 252, 254 (Fla. 5th DCA 2013) (to prove child neglect, "the State is required to prove that t......
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...child abuse, aggravated or simple, would be either first or third degree felony murder and not aggravated manslaughter of a child.757 So. 2d 595, 596 (2000). Petitioner was convicted of two separate crimes with independent elements. Therefore, Petitioner was not subjected to multiple punish......
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Dougherty v. State, 2D00-2194.
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Hare v. State
...Stat. (2009); Fla. Std. Jury. Inst. (Crim.) 7.7; see Ramos v. State, 89 So.3d 1119, 1120 n. 1 (Fla. 1st DCA 2012); Koenig v. State, 757 So.2d 595, 596 (Fla. 5th DCA 2000). In turn, to prove child neglect under section 827.03(3), Florida Statutes (2009), the State is required to prove that t......