George Zimmerman’s 10-20-Life Problem

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:

  1. Category One Lesser Offenses (Mandatory Lessers); and
  2. 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:

  1. Any felony in which a firearm is used is reclassified as follows:
    1. In the case of a felony of the first degree, to a life felony;
    2. In the case of a felony of the second degree, to a felony of the first degree; and
    3. In the case of a felony of the third degree, to a felony of the second degree.
  2. For “enumerated” felonies, a Mandatory-Minimum Prison Sentences must be served (day-for-day, no gain time) if the following apply:
    1. Possession of Firearm during commission of the enumerated felony (10 year minimum prison sentence);
    2. Discharge of Firearm during commission of the enumerated felony (20 year minimum prison sentence); and
    3. 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:

  1. Possessed a firearm in the commission of the felony;
  2. Discharged a firearm in the commission of the felony; or
  3. 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.

Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

30 thoughts on “George Zimmerman’s 10-20-Life Problem”

  1. 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. 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.

      1. 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.

  2. 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.

  3. 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.

  4. I think it would be helpful if you stated which of the “likely” lessers are mandatory and which are discretionary.
    Thank you.
    John Haiges

  5. 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!)

    1. 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.

  6. 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

  7. 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.

      1. 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.

  8. Doesn’t the fact that Martin was 17 years old, a minor, somehow play into the sentencing?

      1. Not according to Judge Nelson! Mantei is an idiot and destined to continue to apply his “talents” as an ASA into old age.

  9. 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.

  10. 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?

  11. 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?

  12. 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?

  13. 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.

  14. 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.

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