To many people, there is no middle ground: George Zimmerman will either be convicted of Second Degree Murder or he will be found Not Guilty.
But the reality is much more complex, because the jury will have a number of Lesser Included Offenses to choose from.
And because of these numerous options, it is not uncommon for a jury to exercise what is known as their “pardon” or “nullification” power and return a compromise verdict that they believe is just under the circumstances. See generally Haygood v. State, 109 So. 3d 735 (Fla. 2013).
Lesser Included Offenses
In Florida, there are two types of Lesser Included Offenses:
- Category One Lesser Offenses (Mandatory Lessers); and
- Category Two Lesser Offenses (Discretionary Lessers).
While mandatory lesser offenses must be given, discretionary lesser offenses are only required if the Information alleges the essential elements of the offenses and one of the parties requests the lesser offense. See Herrington v. State, 538 So. 2d 850 (Fla. 1989).
Based on the schedule of applicable lesser offenses found in the Standard Jury Instructions for Second Degree Murder and the language found with the formal charging document filed against George Zimmerman, the likely lesser offenses applicable to George Zimmerman are:
- Manslaughter;
- Third Degree Felony Murder;
- Aggravated Battery;
- Aggravated Assault;
- Felony Battery;
- Culpable Negligence (Argument can be made not applicable);
- Battery; and
- Assault.
However, this equation is complicated by Florida’s 10-20-Life law (Florida Statute 775.087).
10-20-Life
Florida’s 10-20-Life law imposes enhanced penalties for crimes that involve a firearm.
The law has two primary enhancements:
- Any felony in which a firearm is used is reclassified as follows:
- In the case of a felony of the first degree, to a life felony;
- In the case of a felony of the second degree, to a felony of the first degree; and
- In the case of a felony of the third degree, to a felony of the second degree.
- For “enumerated” felonies, a Mandatory-Minimum Prison Sentences must be served (day-for-day, no gain time) if the following apply:
- Possession of Firearm during commission of the enumerated felony (10 year minimum prison sentence);
- Discharge of Firearm during commission of the enumerated felony (20 year minimum prison sentence); and
- Discharge of Firearm causes death or great bodily harm during commission of the enumerated felony (25 year minimum prison sentence and maximum sentence of life imprisonment).
The applicability of 10-20-Life enhancements are determined by a jury through special jury findings, which they return along with their primary verdict.
The special finding is that the defendant either:
- Possessed a firearm in the commission of the felony;
- Discharged a firearm in the commission of the felony; or
- Caused death or great bodily harm with a firearm in the commission of the felony.
With this as a backdrop, we can discuss the applicable penalties that would apply to each of the offenses the jury will have to choose from. (And no, the jury is not informed of the applicable penalties for each offense.)
Second Degree Murder
Second Degree Murder is classified as a First Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge is required to impose a minimum sentence of 16¾ years in prison, but can impose any additional combination of the following penalties:
- Up to Life in prison.
- Up to Life on probation.
- Up to $10,000 in fines.
10-20-Life Firearm Enhancement
If the jury finds that a firearm was used, Second Degree Murder is reclassified to a Life Felony (although maximum penalty does not change).
However, if the jury finds that a firearm was used to kill Trayvon Martin, the judge would be required to impose a 25 year mandatory-minimum prison sentence and could sentence him up to life in prison.
If the jury found that he discharged a firearm, a 20 year mandatory-minimum sentence must be imposed.
If the jury found that he possessed a firearm, a 10 year mandatory-minimum sentence must be imposed regardless of any mitigating circumstances the judge might find (Not that Judge Nelson would find any.)
Manslaughter
Manslaughter is classified as a Second Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge is required to impose a minimum sentence of 9¼ years in prison and can impose any additional combination of the following penalties:
- Up to 15 years in prison.
- Up to 15 years of probation.
- Up to $10,000 in fines.
10-20-Life Firearm Enhancement
If the jury finds that a firearm was used, Manslaughter is reclassified to a First Degree Felony, which increases the maximum sentence up to 30 years in prison or 30 years of probation.
Interestingly, because Manslaughter is not an enumerated felony under the 10-20-Life statute, a judge is not required to impose any mandatory-minimum sentence.
In a minute I will literally blow your mind, because there are offenses that are “lesser” than Manslaughter, but because they are enumerated offenses, they “expose” George Zimmerman to the 25 year mandatory-minimum sentence.
Third Degree Felony Murder
Third Degree Murder is classified as a Second Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge is required to impose a minimum sentence of 10? years in prison, but can impose any additional combination of the following penalties:
- Up to 15 years in prison.
- Up to 15 years of probation.
- Up to $10,000 in fines.
10-20-Life Firearm Enhancement
If the jury finds that a firearm was used, Third Degree Murder is reclassified to a First Degree Felony, which increases the maximum sentence to 30 years in prison or 30 years of probation.
However, because Murder is an enumerated felony, if the jury finds that the firearm was used to kill Trayvon Martin, the judge would be required to impose a 25 year minimum-mandatory prison sentence and could sentence him to life in prison (notwithstanding the 30 year maximum sentence).
If the jury only found that he possessed or discharged the firearm, then the respective 10 or 20 year mandatory-minimum sentence must be imposed.
Aggravated Battery
Aggravated Battery is classified as a Second Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge is required to impose a minimum sentence of 21 months in prison, but can impose any additional combination of the following penalties:
- Up to 15 years in prison.
- Up to 15 years of probation.
- Up to $10,000 in fines.
10-20-Life Firearm Enhancement
If the jury finds that a firearm was used, Aggravated Battery is reclassified to a First Degree Felony, which increases the maximum sentence to 30 years in prison or 30 years of probation.
However, because Aggravated Battery is an enumerated felony, if the jury finds that a firearm was used to kill Trayvon Martin, the judge would be required to impose a 25 year minimum-mandatory prison sentence and could sentence him to life in prison if she so decided.
If the jury only found that he possessed or discharged the firearm, then the respective 10 or 20 year mandatory-minimum sentence must be imposed.
Aggravated Assault
Aggravated Assault is classified as a Third Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge can impose any combination of the following penalties:
- Up to 5 years in prison.
- Up to 5 years of probation.
- Up to $5,000 in fines.
10-20-Life Firearm Enhancement
If the jury finds that a firearm was used, Aggravated Battery is reclassified to a Second Degree Felony, which increases the maximum sentence to 15 years in prison or 15 years of probation.
However, because Aggravated Assault is an enumerated felony, if the jury finds that the firearm was used to kill Trayvon Martin, the judge would be required to impose a 25 year minimum-mandatory prison sentence and could sentence him to life in prison.
If the jury found the firearm was discharged, the respective 20 year mandatory-minimum sentence must be imposed.
If the jury found he possessed the firearm, a 3 year mandatory-minimum sentence applies. (This is a specific exception from the 10-20-Life schedule.)
Culpable Negligence, Battery, and Assault
Culpable Negligence, Battery, and Assault are either First or Second Degree misdemeanors.
A First Degree Misdemeanor is punishable by a maximum of 1 year jail, 1 year probation, and/or $1,000 fine.
A Second Degree Misdemeanor is punishable by a maximum of 60 days jail, six months probation, and/or $500 fine.
10-20-Life Firearm Enhancement
The 10-20-Life law does not apply to misdemeanors. As a result, no reclassification or mandatory-minimum sentences are applicable.
Not Guilty or Bust
It is entirely possible the jury could convict him of a lesser offense and not find he possessed, discharged, or caused death with a firearm. In such case the mandatory-minimum would not apply.
Realistically though, George Zimmerman must hope he is acquitted out right. Because absent a Manslaughter conviction, Judge Nelson would be statutorily required to impose the 25 year mandatory-minimum prison sentence under Florida’s 10-20-Life for any felony but Manslaughter or Felony Battery.
30 responses to “George Zimmerman’s 10-20-Life Problem”
It seems to me that regarding murder 2 and manslaughter the ultimate question the jury must determine is whether the state has proven beyond a reasonable doubt whether Zimmerman was reasonable in using deadly force. I say this because the only thing that seems to be beyond dispute in this case is that a fight occurred, Martin was the one dishing out the damage for at least part, and Zimmerman received injuries.
So Mr. Hornsby,
1. Can I expect the defense to put on an expert/s to say that being punched/assaulted in the manner Zimmerman was could have caused serious injury?
2. Do you think a jury can fairly and rationally conclude that Zimmerman, beyond a reasonable doubt, did not reasonably fear serious and imminent bodily harm? If you think they can, could you give us an idea of what their reasoning might be considering your legal experience?
Thanks for blog. It does indeed seem that Zimmerman better hope for a full acquittal.
1. I think we have already heard expert testimony as to potential seriousness of George Zimmerman’s injuries.
2. I think a jury could find he reasonably defended himself; as to how they will deliberate, I have never been a juror, so I would not know.
Well, Di Maio did testify about the injuries so I’ll give myself a star for that, and I’ll answer my second question by saying no, the jury can’t fairly find for any murder because Zimmerman’s story has been shown to be consistent with the evidence, something the lead detective agrees with. They can find other, but that would be outside the proper parameters.
Thanks again.
Thanks for answering but what I was after was: Do you think they could rationally and fairly find he DIDN’T reasonably defend himself?
I ask because I hear some pundits say he could be found guilty and I wonder how a jury could come to that verdict legally. (A jury can do what they want of course.)The only basis I can see for finding guilt is believing Zimmerman lied about what happened: He never feared for his life, started the altercation, hunted him down, etc. However, even if you think Zimmerman’s a liar you still have to contend with the fact that Zimmerman’s story has turned out to be consistent with the available evidence, something the lead detective agrees about. Since this applies to both M2 and manslaughter, how can a juror/jury get past the reasonable doubt standard in this case and find he didn’t act reasonably?
Thank you kindly.
Stick a fork in Zimmerman, he’s done. If he wins it will be due to a global mass media campaign portraying him as a murderous yet supine invertebrate protoplasmic jelly who was getting his ass beat by a Skittles-wielding teenager – he will besmirch his lineage plummeting to a new low in shares trading on the male ego stock exchange.
If he loses he will find himself in a Florida state equivalent of San Quentin and quickly realize he is not MMA master of the game, but toast living out the rest of his life in a steamy swampy B grade southern style rendition of Deliverance meets Taxi Driver.
[…] George Zimmerman’s 10-20-Life Problem, excellent analysis of penalties GZ faces. […]
I think it would be helpful if you stated which of the “likely” lessers are mandatory and which are discretionary.
Thank you.
John Haiges
Most important overlooked fact about first witness Dennis Root – actually claims to be a certified expert and instructor on how to turn a ballpoint pen into a weapon of mass destruction. (Now there’s a combat sport in which Zimmerman might have been a contender!)
AS an EMT I have had a case of someone with a a pen stuck in their eye also one stabbed fatally with a long rat tailed comb. Also, I know of a couple of pen/pencil incidents to the neck. I doubt they needed training.
Zimmerman’s body language post judge’s reminder that he alone must choose whether or not to testify – Catcher in the Rye
with a twinge of Casey Anthony “No one’s letting me talk!!!” Best advice: “Never let ’em see you sweat.” Testimony might look something like this: http://www.youtube.com/watch?v=I3tKLD615DQ
Richard; Any chance you have time to update your thoughts on this issue now that the prosecution has indicated they will seek to instruct on murder 2, manslaughter, aggravated assault & improper exhibition of a weapon? The defense has stated they will argue against the submission of the latter 2. Thanks.
Well, Improper Exhibition is not a proper lesser IMO.
Say the judges instructs on murder 2, manslaughter & aggravated assault, if the jury finds that Zimmerman acted in self defense, then they must find him not guilty on all 3 charged offenses, correct?
Thanks for your reply.
Doesn’t the fact that Martin was 17 years old, a minor, somehow play into the sentencing?
Nope.
Not according to Judge Nelson! Mantei is an idiot and destined to continue to apply his “talents” as an ASA into old age.
You’ve been way out ahead of the issues and challenges the defense has faced. I’m curious what you believe are the top five reversible errors should GZ not be acquitted. The authentication reasoning in keeping out TM’s digital records seems to me the clearest trial court error.
Richard: I’m curious about your thoughts on the State’s decision to now offer an instruction on Felony 3rd Degree Murder premised on Child Abuse? In Florida, is it common for the prosecution to tell the court & opposing counsel one thing, only to show up the following morning to raise a completely different argument?
The media keeps talking about 30 years for manslaughter as a minimum. Is that accurate, or can it be less than that if they did give him 30 years when would he be eligible for parole?
30 years is the maximum for Manslaughter.
Thank you for your answer Counselor
An ABCNews article says O’Mara has said he will appeal any conviction and that he hinted he would use “stand your ground”. Can “stand your ground” be used on appeal since it wasn’t used at the start of the trial?
I thought O’Mara came across as condescending and a bit manipulative,
spending a lot of time with a flatlining dialogue detailing to the jury
“here are all the ways I anticipate and dread you’re going to be irrational,
unintelligent + un-Constitutional” – I doubt anyone really absorbed any of it
and seems it could easily backfire – not to mention his big flowery tie
he thinks the female jurors – all of whom he’s certain can’t throw a punch –
will really dig. Guy was a more compelling presenter, but IMO should
have emphasized more on the bad judgement + non-necessity of
shooting, making clear the applicable definition of manslaughter.
IMO the key factor pointing to manslaughter would be the issue of
overkill or overuse of force. That disobeying police order not to follow
was still not technically illegal and stand your ground assured right to
self defense, but even if it was the worst case scenario – Zimmerman
having to fend off an attack by Martin who took him as an assailant –
there are a lot of steps that could come first – communication,
showing the gun, firing warning shot, shooting at leg or extremity –
a point blank shot to the heart with no warning seems to be abuse of
necessary force. I was once in a situation of a kid of very similar stature
and appearance to Trayvon jumped down from a tree in front of me
using element of surprise to run off with my bag. I ran after him and
forcibly retrieved my property – but had no motive to escalate aggression
beyond what was necessary to not be mugged. It was a very simple
snap decision and got the right result – retrieval of my property –
it was a no-brainer easily made in a snap decision that an escalation of
response to something more violent would be out of line.
Seriously how many people have been n Geroge situation,rmember Reginald Denny? He can baely function The idea that yur on the ground getting your face beat in and your going to rationally work out the amount of force needed to apply is ridiculous. your not in a position to show the gun unless you draw it and the guy is right on top of you.
Showing a gun is a felony in Florida,and then there is the getting shot yurself with it.Who knows what the jury will do. If they have half a brain not guilty.
the prosecution can not prove beyond a reasonable doubt. Zimmerman did not fear for his life or great bodily harm. They also can not prove Zimmerman assaulted Martin and following someone is not a crime anywhere. You have to get a court order to even prove stalking and and get a restraint order.
Admittedly i am having a hard time to feel any type of sympathy for George Zimmerman, but the part of the law you allude to has puzzled me too. Seems it tries to prevent people can threaten others with arms.
I have asked myself if the part of law, that didn’t allow George Zimmerman to simply threaten him with his gun could in fact have been partly responsible for his life.
On the other hand, with the little abrasions in mind, if you allow me.
Hadn’t it effectively stopped Martin if he only shot into his arm or leg or wherever? Remember he told the officers he made sure he wouldn’t shoot into his own other arm or hand before he aimed and shot. Now why would he want him to be dead, if he Zimmerman did nothing wrong?
GZ Guilt Theorem: Everything happens as outlined in the evidence up to the point in the non emergency call where George says “shit, he’s running”. Then George jogs/hustles to the T intersection, Trayvon ran to the T then went left toward the back of Jayne Surdyka’s house and hides in the darkness. George continues to Retreat View Circle and completes the non emergency call and hangs up. He draws his gun for the walk back in the dark with his baby flashlight out, this provides just enough light for the hiding Trayvon to see the outline of a man hunting him with gun drawn. Trayvon pounces from the darkness and tackles GZ at the T, GZ drops the baby flashlight straight down and the gun flies behind John Goode’s house. GZ and T both know the gun is in play now and run the direction the gun flew. TM tackles GZ and bashes his head against the sidewalk, JG tells them to stop (Lauer 911 call is already recording) GZ scoots off the sidewalk. TM still fighting for his life continues to punch GZ, they struggle until GZ frantic hands finds the gun in the grass, he points it at TM and fires one round. That is obviously timed with the Lauer 911 sound. Mora’s testimony makes sense then as well as Johnathon M’s story. Explains GZ comment of “Just tell her I shot someone” he knew all along because he’d had planned on shooting someone. All Rachel Jenteal needed to do was say Trayvon mentioned he was hiding and that “Now that creepy ass guy that I told you about has gotten out of his vehicle and has a gun out and a flashlight. I’m worried hes looking for me” Then she should’ve went on to say “TM said I’m gonna tackle this guy” then the phone cuts off. The SAO then introduces all of the bad TM evidence, that he was a bad kid and liked fighting, the cell phone, pot, etc. They (SAO) plays up the fighting and bad behavior/suspensions to Prove Beyond a Reasonable doubt that TM was batshit crazy and wasn’t afraid of engaging an individual with a gun drawn. Of course he would attack the guy because he’s such a bad kid…come on BDLR use the overwhelming evidence you have available (wanna be gangster, who was obviously high on some “fine a** lean” as he was found with 2 out of 3 the necessary ingredients on his body)…life gives you lemons you make lemonade. They had the full availability to have RJ tell any sort of story they wanted…too bad BC wasn’t smart enough to fabricate a better story upfront. Even so they couldve had her just change her testimony a third time to tell the GZ hunting story and reason that it changed was because she was scared if she told police TM attacked GZ with gun out it would get TM in trouble (again she knew he was a fighter thats why she wasn’t worried when he didn’t call her back, she figured he’s just been celebrating his victory over GZ and passed out on some fine lean)
Thank you very much! “mic drop” boom, it was Colonel Mustard in the library with the candlestick!
This is a petition to have the DOJ investigate Angela Coury
https://www.change.org/p/justice-for-george-zimmerman-investigate-angela-coury-for-violation-of-zimmerman-s-civil-rights
Casey Anthony Trial = “The Perfect Storm”
Trayvon Martin Trial = “The Imperfect Storm”…
Also…One important point to consider – without being extremist or paranoid – is the various forms of corrupt political agendas hoping to use – and magnify – tensions of the trial aftermath -into politically divisive racial tensions that serve their own interests. Very important to be able to read between the lines for provocateuring and disinfo.
The Zimmerman trucker rescue story is just as likely to be true as a
fabricated psy-op. Watch to see if he’s discovered nursing abandoned
puppies back to life in the next 48 hours. …
Whatever you believe about the roles of the various players in this event,
at this point most important is not letting it be manipulated into a mass
racial conflict or provocation of violence against govt. – because there
are rogue elements of govt that have invested a lot into trying to spin this
into a massive engineered “civil unrest” that would enable a declaration
of martial law and more steps toward a more comprehensive totalitarian
form of govt. and a fast and furious illegal govt. power grab far better
facilitated by gun bans and confiscations – even better if they are
demanded by a fearful public that’s now more eager to dis the forefathers
and trade liberty for what they wrongly think is security.
Objective thinking that is neither gullible nor paranoid is key.