Mahaun v. State, 377 So. 2d 1158 (Fla. 1979). · Go Syfert
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Mahaun v. State, 377 So. 2d 1158 (Fla. 1979). Cases Citing This Book View Copy Cite
113 citation events (25 in the last 25 years) across 10 distinct courts.
Strongest positive: Jamal Wodford v. State of Florida, No. 2022-3949 (Fla. 1st DCA June 26, 2024)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
How cited ↗
Cited for
At page 1161 Reversing felony murder conviction lacking underlying felony element14 citing casesgreater offense conviction of third degree murder reversed because jury acquitted defendant on the lesser included offense, to wit: the underlying felony involved in the third degree murder charge4 citing courts put it this way
  • Jamal Wodford v. State of Florida, No. 2022-3949 (Fla. 1st DCA June 26, 2024).published
    (reversing a defendant’s felony murder conviction “because the jury failed to find her guilty of the underlying felony)
  • Steve Senelus v. Attorney Gen., State of Florida, 806 F. App'x 806 (11th Cir. 2020).unpublished 2 cites
    See, e.g., Redondo v. State, 403 So. 2d 954, 956 (Fla. 1981); Mahaun v. State, 377 So. 2d 1158, 1161 (Fla. 1979).
  • People v. Doubleday, 2012 COA 141, 369 P.3d 595.published
    (the jury's conviction of the defendant for felony murder was erroneous because it found her guilty of the predicate felony's lesser included misdemeanor, indicating that she did not commit the predicate felony)
  • State v. Cappalo, 932 So. 2d 331 (Fla. 2d DCA 2006).published
    For example, the verdicts are im-permissibly inconsistent where a defendant is convicted of felony murder but convicted of only a misdemeanor rather than the underlying felony, see Mahaun v. State, 377 So.2d 1158, 1161 (Fla.1979), or where…
  • State v. Grey, 685 A.2d 923 (N.J. 1996).published 2 cites
    (reversing conviction of felony murder because the defendant was not convicted of the underlying felony that was an “essential element” of the felony murder)
  • Fayson v. State, 684 So. 2d 270 (Fla. 1st DCA 1996).published
    Mahaun v. State, 377 So.2d 1158, 1161 (Fla.1979).
  • United States v. Lavance Greene, 834 F.2d 1067 (D.C. Cir. 1988).published
    Those cases involved situations where the defendant was adjudged innocent of the underlying felony, Mahaun v. State, 377 So.2d 1158, 1161 (Fla.1979); Wright v. State, 307 Md. 552 , 515 A.2d 1157, 1162 (1986); State v. Weinberger, 206 Mont.…
  • McCray v. State, 397 So. 2d 1229 (Fla. 3d DCA 1981).published
    We do not agree with the defendant's primary contention on appeal, to the effect that the verdicts returned by the jury are "legally inconsistent" and that under Mahaun v. State, 377 So.2d 1158, 1161 (Fla. 1979), the acquittal as to aggrav…
  • Moody v. State, 931 So. 2d 177 (Fla. 2d DCA 2006).published 2 cites
    (holding that defendant's conviction of third-degree murder would not stand in light of defendant's acquittal of underlying aggravated child abuse offense)
  • State v. Beach, 67 P.3d 121 (Kan. 2003).published
    See Mahaun v. State, 377 So. 2d 1158, 1161 (Fla. 1979), Noel v. State, *622 705 So. 2d 648, 650 (Fla. App. 1998), and Pray v. State, 571 So. 2d 554, 555 (Fla. App. 1990).
Show 4 more citing cases
  • Colon v. State, 730 So. 2d 780 (Fla. 3d DCA 1999).published
    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).
  • State v. Hamilton, 660 So. 2d 1038 (Fla. 1995).published
    See Mahaun v. State, 377 So.2d 1158, 1161 (Fla. 1979).
  • Pleasant Grove City v. Terry, 2020 UT 69, 478 P.3d 1026.published
    See, e.g., Mahaun v. State, 377 So. 2d 1158, 1161 (Fla. 1979).
  • Hicks v. State, 414 So. 2d 1137 (Fla. 3d DCA 1982).published
    (greater offense conviction of third degree murder reversed because jury acquitted defendant on the lesser included offense, to wit: the underlying felony involved in the third degree murder charge)
At page 1160 Defining second and third degree murder under felony murder statutes6 citing casesIn any felony murder conviction the element of causation must be established.1 citing court put it this way
  • Cuevas v. State, 741 So. 2d 1234 (Fla. 5th DCA 1999).published 2 cites
    NOTES [1] § 794.011(4), Fla. Stat. (1995). [2] § 794.023, Fla. Stat. (1995). [3] § 794.011(4); 777.011, Fla. Stat. (1995). [4] Mr. Cuevas has not challenged his judgment and sentence entered on count III, relating to the crime of false imp…
  • Gomez v. State, 496 So. 2d 982 (Fla. 3d DCA 1986).published
    See Bryant v. State, 412 So.2d 347, 350 (Fla. 1982); Mahaun v. State, 377 So.2d 1158, 1160 (Fla. 1979); Garcia v. State, 439 So.2d 328 (Fla. 3d DCA 1983); Mumford v. State, 19 Md.
  • Gonzalez v. State, 449 So. 2d 882 (Fla. 3d DCA 1984).published 2 cites
    Mahaun v. State, 377 So.2d 1158, 1160 (Fla. 1979). [3] Under the statute applicable to appellant's convictions, the offense of trafficking in marijuana is a first-degree felony, Section 893.135(1)(a) Florida Statutes (1981), punishable by…
  • Moore v. State, 983 So. 2d 691 (Fla. 1st DCA 2008).published
    See Mahaun v. State, 377 So.2d 1158, 1160 (Fla.1979).
  • Moody v. State, 931 So. 2d 177 (Fla. 2d DCA 2006).published 2 cites
    See Mahaun, 377 So.2d at 1161 (holding that defendant's conviction of third-degree murder would not stand in light of defendant's acquittal of underlying aggravated child abuse offense).
  • Currelly v. State, 644 So. 2d 139 (Fla. 2d DCA 1994).published
    (In any felony murder conviction the element of causation must be established.)
guilty verdict on felony-murder set aside where jury failed to find defendant guilty of the underlying felonyno pin page on record · 5 citing cases listed
  • Kristopher Michael Goodwin Vs State of Florida, No. 22-0661 (Fla. 1st DCA June 16, 2023).published
    (guilty verdict on felony-murder set aside where jury failed to find defendant guilty of the underlying felony)
  • Robert Jacoby Turner v. State of Florida, No. 17-3244 (Fla. 1st DCA June 28, 2019).published
    (verdict of guilty as to felony-murder set aside where jury failed to find defendant guilty of the underlying felony)
  • Brown v. State, 959 So. 2d 218 (Fla. 2007).published
    (verdict of guilty as to felony-murder set aside where jury failed to find defendant guilty of the underlying felony)
  • Fayson v. State, 698 So. 2d 825 (Fla. 1997).published
    (verdict of guilty as to felony-murder set aside where jury failed to find defendant guilty of the underlying felony)
  • State v. Powell, 674 So. 2d 731 (Fla. 1996).published
    (verdict of guilty as to felony-murder set aside where jury failed to find defendant guilty of the underlying felony)
At page 1159 defendant appropriately convicted of lesser included misdemeanor of culpable negligence to the charged offense of aggravated child abuse1 citing case1 citing court put it this way
  • Kama v. State, 507 So. 2d 154 (Fla. 1st DCA 1987).published
    (defendant appropriately convicted of lesser included misdemeanor of culpable negligence to the charged offense of aggravated child abuse)
Other citing cases10 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Robert MAHAUN and Patricia Mahaun, Appellants,
v.
STATE of Florida, Appellee.
52877.
Supreme Court of Florida.
Dec 13, 1979.
Published opinion
377 So. 2d 1158
Overton.
Cited by 92 opinions  |  Published

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[*1159] 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[*1160] 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 upon an underlying felony. Thus, while intent to cause death is not an element of the felony murder, the intent requirement of the underlying felony must nonetheless be proven. In Adams we upheld the constitutionality of the statutory provision defining first-degree felony murder. In so doing, we examined in detail and approved the theory of felony murder. We adhere to these same principles in the instant case.

Further, allegations that a felony in conjunction with a merely incidental death could constitute a felony murder are illfounded. In any felony murder conviction the element of causation must be established. Adams v. State, 310 So.2d 782 (Fla. 2d DCA 1975); Phillips v. State, 289 So.2d 447 (Fla. 2d DCA 1974). We find the language of sections 782.04(4) and 827.03 sufficiently defines the proscribed conduct when measured by common understanding and practice. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); State v. Dye, 346 So.2d 538 (Fla. 1977).

Although we find the statute constitutional, the contention of appellant, Robert Mahaun that he cannot be sentenced for both third-degree felony murder and the underlying felony has merit. Where the underlying felony is an essential element of the felony murder, a defendant cannot be sentenced for both crimes. In this case, appellant Robert Mahaun was convicted of third-degree felony murder and aggravated child abuse; however, aggravated child abuse was an essential element of this felony murder. This is reflected in the information which charged appellants with murder while "in the perpetration of ... aggravated child abuse." The state was authorized to charge appellant with both crimes. However, where the underlying crime is an element of the greater offense, the defendant may[*1161] be convicted and sentenced only for the greater of the crimes. State v. Pinder, 375 So.2d 836 (Fla. 1979); State v. Wright, 379 So.2d 96 (Fla. 1979). See Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Robert Mahaun's conviction for third-degree felony murder stands, but the conviction for child abuse must be vacated.

Appellant Patricia Mahaun asserts that her third-degree felony murder conviction must be vacated because the jury failed to find her guilty of the underlying felony of aggravated child abuse or attempted aggravated child abuse, instead finding her guilty of the lesser included misdemeanor of culpable negligence. Mrs. Mahaun's conviction for culpable negligence effectively holds her innocent of the aggravated child abuse charge. Because the aggravated child abuse felony was an essential element of the felony murder, we hold that Mrs. Mahaun cannot be guilty of third-degree felony murder.

The remaining contentions of the appellants are without merit.

For the reasons expressed, the sentences of Patricia Mahaun for culpable negligence and Robert Mahaun for third-degree felony murder are affirmed. The convictions and sentences of Patricia Mahaun for third-degree felony murder and Robert Mahaun for aggravated child abuse are reversed and vacated.

It is so ordered.

ENGLAND, C.J., BOYD, SUNDBERG and ALDERMAN, JJ., concur.

ADKINS, Justice, dissents:

"Under the circumstances of these cases, I would affirm all the judgments of guilt."

1 Art. V, § 3(b)(1), Fla. Const.