Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wyche v. State

Florida Court of Appeals, First District

November 6, 2017

VIRGINIA DENISE WYCHE, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Duval County. Mark Hulsey, Judge.

          Andy Thomas, Public Defender, Victor Holder, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.

          LEWIS, J.

         Virginia Denise Wyche, Appellant, challenges her convictions and sentences for second-degree murder of an unborn quick child and attempted second-degree murder of the unborn child's mother, raising eleven issues, only the first of which merits discussion. Appellant argues that her second-degree murder conviction cannot be legally sustained because under the common law born alive rule, an unborn child is not a human being within the meaning of Florida's homicide statute, section 782.04(2), Florida Statutes (2013). We reject Appellant's argument for the reasons that follow and affirm her convictions and sentences in all other respects without further discussion.

         In this tragic case, on April 23, 2014, twenty-five to twenty-six weeks into her pregnancy, the mother was shot with a .22-caliber revolver in the abdomen by Appellant, her friend, over a dispute involving the naming of the unborn quick child, with the bullet striking the unborn quick child and causing multiple injuries to the unborn child. While the mother survived the gunshot wound, the unborn quick child was not born alive and died as the result of the gunshot wound. Following trial, the jury found Appellant guilty as charged of attempted second-degree murder of the mother and guilty of second-degree murder of the unborn quick child. Thus, the issue we must resolve is whether the common law born alive rule has been abrogated by the Florida Legislature so as to allow Appellant's second-degree murder conviction to stand under section 782.04(2). Given that this issue presents a pure question of law and turns on statutory interpretation, our review is de novo. See Townsend v. R.J. Reynolds Tobacco Co., 192 So.3d 1223, 1225 (Fla. 2016).

          Section 782.04(2), Florida Statutes (2013), defines second-degree murder as "[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual." Under the common law born alive rule, "the killing of a fetus was not homicide unless the child was born alive and then expired as a result of the injuries previously sustained." State v. Gonzalez, 467 So.2d 723, 725 (Fla. 3d DCA 1985); see also Knighton v. State, 603 So.2d 71, 72 (Fla. 4th DCA 1992); State v. McCall, 458 So.2d 875, 876 (Fla. 2d DCA 1984).[1]

         The Florida Legislature enacted section 782.09, Florida Statutes, commonly referred to as the feticide statute, in 1868. Ch. 1868-1637, § 10, Laws of Fla. Through September 2005, the feticide statute provided that "[t]he willful killing of an unborn quick child, by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed manslaughter." § 782.09, Fla. Stat. (2005). Effective October 2005, the feticide statute was amended to provide that the unlawful killing of an unborn quick child shall be deemed manslaughter or murder in the same degree as that which would have been committed against the mother if the act had resulted in her death. Ch. 2005-119, § 2, Laws of Fla. At the time of Appellant's offenses, the feticide statute set forth:

(1) The unlawful killing of an unborn quick child, by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed murder in the same degree as that which would have been committed against the mother. Any person, other than the mother, who unlawfully kills an unborn quick child by any injury to the mother:
. . . .
(b) Which would be murder in the second degree if it resulted in the mother's death commits murder in the second degree . . . .

§ 782.09, Fla. Stat. (2013) (defining "unborn quick child" as a "viable fetus") (emphasis added).[2]

         "Under our rules of statutory construction, a statute will not displace the common law unless the legislature expressly indicates an intention to do so." Kitchen v. K-Mart Corp., 697 So.2d 1200, 1207 (Fla. 1997) (citing Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362 (Fla. 1977)). "Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law." Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990) (citations omitted); see also Townsend, 192 So.3d at 1231; Webb v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.