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You’ll have to forgive me, I’m not an attorney but I’ll give a spitball answer. My understanding is that under the legal theory of “merger doctrine” the original charging document (as in this case) alleged Murder in 2nd degree. As a result all lesser offenses (3rd degree murder, manslaughter) are automatically indcluded even if they are not specified in the original indictment.

Under this doctrine, then all lesser offenses can be included in jury instructions as to finding of guilt on the major charge or a lesser charge. And it becomes the responsiblity of the defense to argue (theoretically at least—or be prepared) all of the lesser charges. Even if they don’t come up in court.

Anybody feel free to correct me.

"You’ll have to forgive me, I’m not an attorney but I’ll give a spitball answer. My understanding is that under the legal theory of “merger doctrine” the original charging document (as in this case) alleged Murder in 2nd degree. As a result all lesser offenses (3rd degree murder, manslaughter) are automatically indcluded even if they are not specified in the original indictment."

Then why do we hear - in previous cases - about prosecutorial "overreach" in going after a more serious charge when a lesser charge would be easier to prove? And is "child abuse" a lesser charge in a second-degree murder trial?

You’ll have to forgive me, I’m not an attorney but I’ll give a spitball answer. My understanding is that under the legal theory of “merger doctrine” the original charging document (as in this case) alleged Murder in 2nd degree. As a result all lesser offenses (3rd degree murder, manslaughter) are automatically indcluded even if they are not specified in the original indictment.

Under this doctrine, then all lesser offenses can be included in jury instructions as to finding of guilt on the major charge or a lesser charge. And it becomes the responsiblity of the defense to argue (theoretically at least—or be prepared) all of the lesser charges. Even if they don’t come up in court.

IANAL either, but I think there is a flaw in your example.

In order for there to be Third Degree Murder in commission of a Felony, the defendant must be found guilty of the underlying felony, in this case Child Abuse. That was never alleged until this morning, so there has been no defense presented, and it’s too late because both sides have rested.

That would be correct in the case of manslaughter or aggravated battery. But I think they could argue that the “merger” doesn’t apply to lesser charges which contain some new element, as in the case of child abuse. For example, if Florida had hate crime laws to address racially motivated attacks, I don’t believe they should be able to add this on since it would add an element (racism) not included in the 2nd degree murder.

“Anybody feel free to correct me.”

No. Lesser charges are only automatic if the defense agrees to them.