Fort Myers Federal Criminal Defense Attorney David A. Brener of the Law Offices of Brener and DeMine, P.A. has been invited to speak at a panel discussion on the federal court system. The forum is open to all members of the community and will be attended by a federal district judge from Fort Myers, the United States Attorney for the Middle District of Florida, a federal civil law attorney, and David Brener, who will speak about federal criminal defense.
The forum takes place at the County Commissioner's Building (old courthouse) in downtown Fort Myers, on Friday March 25th, 2011, begining at 10:00 a.m.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
http://www.justiceisourpassion.com
Thursday, March 24, 2011
Friday, February 25, 2011
"Florida's Felony Murder Rule Sweeps With A Broad Brush", by David A. Brener, Esq.
Florida's felony - murder rule, incorporated into its murder statute, section 782.04, makes it first degree murder when the death of a non-participant occurs during the commission, attempt to commit, or escape from the commission of various enumerated felonies. These crimes include the most frequently committed felonies, such as robbery, burglary, rape, kidnapping, arson, and others. As a consequence, someone who agrees to participate in one of these felonies is deemed responsible under the law if a homicide occurs during the course of the crime. This is true even if the person did not pull the trigger or commit the killing, and even if the homicide was unintended, an accident, or actually committed by a third party, like, for example a police officer, security guard, or homeowner. If the person who is killed is the victim of the underlying crime, an innocent bystander, or anyone other than one of the perpetrators, the crime is first degree murder. If the person who dies is a co-perpetrator, then the proper charge, under Florida law, is felony second degree murder. If a non-enumerated felony is being committted when the killing occurs, like for example grand theft, then the proper charge, under the law, is felony third degree murder.
First degree murder is punishable by only two possible sentences: life in prison without parole, and the death penalty. Second degree felony murder is punishable by up to life in prison, with approximately twenty years as the low end of the sentencing range, without any additional charges. Third degree murder charges are rare, and usually are seen as a jury compromise verdict to lesser included charges of felony first degree murder.
Florida's felony murder rule applies to not only the killer, but the killer's co-participants in the underlying felony. That is the purpose of this law - to hold people responsible for a homicide which they did not commit because they took the risk associated with committing the underlying crime. The fact that a person did not intend for the homicide to occur, and did not know that someone, be it co-perpetrator or police officer, was going to kill, is no defense. This results in an extremely harsh application of the law, and one that really does not treat people who kill differently than those who do not. It is for this reason that the country which invented felony murder, England, has abolished it, and why a number of states, unlike Florida, have severely limited its application.
One recognized legal defense to felony murder in Florida is the independent act doctrine. Florida recognizes a defense to felony murder if the homicide was not committed by the defendant, the defendant did not intend for the homicide to occur, and the killing was not part of the plan and not a reasonably forseeable consequence of the plan to commit the underlying felony. This last part - about what is reasonably foreseeable - is where the problem lies, and where the litigation has centered. Some authorities suggest that when the defendant is aware that firearms are involved in the underlying felony, then the independent act defense is unavailable, even if the defendant did not carry. Thus, the getaway driver and the guy who planned the robbery but stayed home, can be charged and convicted of murder even though violence was not supposed to occur. Similarly, a defendant in a high speed chase cannot claim, when a police officer dies, that it was the independent act of the officer of pursuing the defendant at high speed which was the legal cause of the death. The courts have generally taken the view that to permit a defendant in a robbery homicide to defend based on the fact that the co-defendant killed the store clerk with a firearm which the defendant knew the co-defendant was carrying, or to defend because the store clerk killed the co-defendant when confronted by armed perpetrators, would eviscerate the felony murder rule.
To the contrary, leaving it to a jury to decide, and giving the legal instructions on independent act and allowing the jury to apply the law to the facts, would allow some relief, in exceptional cases, from this draconian law. Until this harsh law is repealed, this is the least we should do.
by: David A. Brener, Esq.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
www.murderlawyerflorida.com
www.justiceisourpassion.com
First degree murder is punishable by only two possible sentences: life in prison without parole, and the death penalty. Second degree felony murder is punishable by up to life in prison, with approximately twenty years as the low end of the sentencing range, without any additional charges. Third degree murder charges are rare, and usually are seen as a jury compromise verdict to lesser included charges of felony first degree murder.
Florida's felony murder rule applies to not only the killer, but the killer's co-participants in the underlying felony. That is the purpose of this law - to hold people responsible for a homicide which they did not commit because they took the risk associated with committing the underlying crime. The fact that a person did not intend for the homicide to occur, and did not know that someone, be it co-perpetrator or police officer, was going to kill, is no defense. This results in an extremely harsh application of the law, and one that really does not treat people who kill differently than those who do not. It is for this reason that the country which invented felony murder, England, has abolished it, and why a number of states, unlike Florida, have severely limited its application.
One recognized legal defense to felony murder in Florida is the independent act doctrine. Florida recognizes a defense to felony murder if the homicide was not committed by the defendant, the defendant did not intend for the homicide to occur, and the killing was not part of the plan and not a reasonably forseeable consequence of the plan to commit the underlying felony. This last part - about what is reasonably foreseeable - is where the problem lies, and where the litigation has centered. Some authorities suggest that when the defendant is aware that firearms are involved in the underlying felony, then the independent act defense is unavailable, even if the defendant did not carry. Thus, the getaway driver and the guy who planned the robbery but stayed home, can be charged and convicted of murder even though violence was not supposed to occur. Similarly, a defendant in a high speed chase cannot claim, when a police officer dies, that it was the independent act of the officer of pursuing the defendant at high speed which was the legal cause of the death. The courts have generally taken the view that to permit a defendant in a robbery homicide to defend based on the fact that the co-defendant killed the store clerk with a firearm which the defendant knew the co-defendant was carrying, or to defend because the store clerk killed the co-defendant when confronted by armed perpetrators, would eviscerate the felony murder rule.
To the contrary, leaving it to a jury to decide, and giving the legal instructions on independent act and allowing the jury to apply the law to the facts, would allow some relief, in exceptional cases, from this draconian law. Until this harsh law is repealed, this is the least we should do.
by: David A. Brener, Esq.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
www.murderlawyerflorida.com
www.justiceisourpassion.com
Wednesday, February 23, 2011
Florida Murder and Homicide Attorney Lawyer David A. Brener 239-332-1100 Travels Statewide For Homicide Defense
Florida Murder and Homicide Lawyer Attorney David A. Brener 239-332-1100, based out of Fort Myers, is available to represent clients charged with murder or manslaughter throughout the State of Florida. Brener is admitted to all the courts in the state, as well as the United States District Courts for the Southern and Middle Districts of Florida. Brener is one of a relatively few attorneys who are qualified to act as lead counsel in capital death penalty cases, and has handled approximately 20 such charges, as well as dozens of second degree murder and manslaughter cases. David A. Brener is peer review rated "AV Preeminent" in criminal law by Martindale Hubbell, and is listed in the Bar Registry of Preeminent Lawyers.
Law Offices of Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
murderlawyerflorida.com
Law Offices of Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
murderlawyerflorida.com
Sunday, January 23, 2011
Lee County Murder Lawyer David A. Brener and Partner Thomas DeMine To Try Strangulation Murder Case In February
Lee County Murder Lawyer Attorney David A. Brener 239-332-1100 and his Partner Thomas E. DeMine will be trying a Fort Myers strangulation homicide at the Lee County Justice Center in February 2011. The case is expected to last between one and two weeks. The state is not seeking the death penalty.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
http://www.justiceisourpassion.com
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl. 33907
239-332-1100
http://www.justiceisourpassion.com
Thursday, January 20, 2011
Fort Myers Florida Homicide Attorney David A. Brener To Speak At "Death Is Different" Seminar
Fort Myers Florida Homicide Attorney Lawyer David A. Brener 239-332-1100 has been invited to speak at the annual Florida Association of Criminal Defense Lawyers death penalty seminar "Death is Different" in March 2011. Brener's topic will be jury selection in capital cases - "Re-thinking Change of Venue in High Profile Capital Cases: Staying Put and Using Morgan v. Illinois and Pre-trial Publicity To Remove Pro-Death Jurors." This method of jury selection - a modified "Colorado Method" approach addressing the removal of mitigation-impaired and publicity-exposed prospective jurors, has been used by capital counsel, including Brener in a 2010 aggravated capital murder case, to seat juries which can recommend life in prison, rather than the death penalty, in spite of the death-biased death qualification process.
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers,Fl. 33901
239-332-1100
http://www.justiceisourpassion.com
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers,Fl. 33901
239-332-1100
http://www.justiceisourpassion.com
Tuesday, January 18, 2011
Florida Murder Lawyer Attorney David A. Brener To Be Guest Speaker
Florida Murder Lawyer Attorney David A. Brener 239-332-1100 has been invited to give a presentation on jury selection in capital murder cases at "Loosening the Death Belt", a death penalty seminar sponsored by the Alabama Association of Criminal Defense Lawyers. The seminar runs from January 28th to 30th 2011, in Birmingham, Alabama.
David A. Brener
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl.33907
www.justiceisourpassion.com
David A. Brener
Brener and DeMine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl.33907
www.justiceisourpassion.com
Saturday, December 25, 2010
Attorney David A. Brener Finishes Federal Narcotics Conspiracy Trial
Fort Myers Criminal Defense Attorney David A. Brener of the Law Offices of Brener and DeMine, P.A. 239-332-1100 completed a federal criminal trial this month involving a conspiracy to possess with intent to distribute thousands of oxycocone, alprazolam and methadone pills. The jury deliberated almost three hours before reurning the verdict. The case was prosecuted by Chief Assistant United States Attorney Doug Molloy, and included the testimony of several cooperating co-defendants. Mr. Brener's client was the only defendant, of nine indicted, to go to trial.
Brener and Demine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl.33907
239-332-1100
www.justiceisourpassion.com
Brener and Demine, P.A.
12381 South Cleveland Avenue
Suite 201
Fort Myers, Fl.33907
239-332-1100
www.justiceisourpassion.com
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