FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Duval County. Mark Hulsey,
Thomas, Public Defender, Victor Holder, Assistant Public
Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
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.
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).
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
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. ...