Mahaun v. State

Decision Date13 December 1979
Docket NumberNo. 52877,52877
Citation377 So.2d 1158
PartiesRobert MAHAUN and Patricia Mahaun, Appellants, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

David A. Demers, of Demers & Demers, St. Petersburg, for appellants.

Jim Smith, Atty. Gen., and Charles Corcees, Jr., Asst. Atty. Gen., Tampa, for appellee.

OVERTON, Justice.

This is a direct appeal from a circuit court judgment expressly upholding the constitutionality of sections 782.04 (third-degree felony murder) and 827.03(3) (aggravated child abuse), Florida Statutes (1975). We have jurisdiction. 1

Appellants Robert Mahaun and Patricia Mahaun, husband and wife, were charged in Count One with third-degree felony murder and in Count Two with aggravated child abuse under sections 782.04(4) and 827.03(3), respectively. Specifically, the information read as follows:

COUNT ONE

ROBERT MAHAUN and PATRICIA MAHAUN . . . unlawfully, while engaged in the perpetration of, or in an attempt to perpetrate the crime of aggravated child abuse, did, without any design to effect death, kill and murder Gregory Travis Moore, a human being, by causing the death of the said Gregory Travis Moore within one year and one day; contrary to Chapter 782.04, Florida Statutes . . . .

COUNT TWO

ROBERT MAHAUN and PATRICIA MAHAUN . . . did commit the crime of aggravated child abuse by torturing one Gregory Travis Moore, a child under the age of eighteen years, by causing great bodily harm, or permanent disability, or permanent disfigurement; contrary to Chapter 827.03, Florida Statutes . . . .

The victim was born to the present Patricia Mahaun and Gregory Moore, who were divorced shortly thereafter. The child suffered bruises about his body shortly after Robert Mahaun began visiting the mother. Following the Mahaun marriage in April, 1976, the child was taken to the hospital on three separate occasions to be treated for trauma, seizures, and hemorrhages. Despite being incapable of movement at the conclusion of the third hospitalization, the child subsequently suffered severe injuries, including a skull fracture, while in the exclusive control of the appellants. As a result of these injuries, the child died at the chronic care facility in July, 1977.

In a jury trial Robert Mahaun was found guilty of third-degree felony murder and aggravated child abuse and was sentenced to consecutive fifteen-year terms of imprisonment. Patricia Mahaun was found guilty of both third-degree felony murder and the misdemeanor offense of culpable negligence by exposing the infant to injury, a lesser included offense of aggravated child abuse.

Appellants contend that the statutes under which they were convicted are vague and overbroad. Appellants' due process attacks upon section 827.03 concerning aggravated child abuse have been rejected by this Court on several occasions. We see no reason to overturn our well-established precedent. State v. Gaylord, 356 So.2d 313 (Fla.1978); Faust v. State, 354 So.2d 866 (Fla.1978); Jordan v. State, 334 So.2d 589 (Fla.1976).

The appellants contend the offense of third-degree felony murder, set forth in section 782.04(4), is unconstitutionally vague because it contains no intent requirement that can be replaced by the establishment of an underlying felony. We reject this contention. We find the offense of third-degree murder as set forth in section 782.04(4) to be an integral and proper part of the criminal homicide scheme of first-, second-, and third-degree murder.

First-degree murder, set forth in section 782.04(1), requires that the unlawful killing Either (1) be perpetrated from a premeditated design, Or (2) be committed by a person who is perpetrating any of the following felonies: arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, unlawful throwing, placing, or discharging of a destructive device or bomb, or the result of unlawful distribution of opium or preparation of opium by a person eighteen years or older when the drug is proven to be the proximate cause of the death of the user.

Second-degree murder, as set forth in section 782.04(2), requires that the unlawful killing Either (1) be committed in the course of an act imminently dangerous to another and evincing a depraved mind regardless of human life, Or (2) be performed in the course of an attempt to commit any arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the felony. Although the felony murder provisions of second-degree murder include almost all of the felonies included in first-degree felony murder, there is a clear distinction as explained by this Court in Adams v. State, 341 So.2d 765 (Fla.1976). In Adams we expressly held that the language of the second-degree felony murder statute applies only to murders where the individual who perpetrates the underlying felony is an accessory before the fact and does not personally engage in its commission. One who personally kills another during the perpetration of one of the enumerated felonies is guilty of first-degree murder, and the statutory scheme does not allow for conviction of second-degree murder even as a lesser included offense.

Third-degree murder, as set forth in section 782.04(4), Florida Statutes (1977), is defined as an unlawful killing committed by a person engaged in the perpetration of any felony other than those identified as the underlying felony in second-degree murder when there is no premeditated design to effect the death of the victim. There is no alternative means to find a person guilty of third-degree murder other than by establishing that there was an appropriate underlying felony and that a homicide occurred in its perpetration. The fact that there is no alternative means to establish the third-degree murder offense does not render the statute invalid.

Appellants suggest that because section 782.04(4) contains no intent requirement, the state could secure a third-degree felony murder conviction without establishing any intent. This is not the case. Any felony murder charge must be based...

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