Doctrine of Merger in Florida
The merger doctrine is a principle of statutory construction rather than a principle of constitutional law.
The merger doctrine is distinct from double jeopardy, which is a constitutional principle. However, the Court has made it clear that there is no double jeopardy concern with dual convictions for aggravated child abuse and felony murder. Lukehart v. State, 776 So. 2d 906, 922 (Fla. 2000)
("We find Lukehart's argument that double jeopardy principles prohibit the dual convictions of felony murder and aggravated child abuse to be without merit. . . . This issue was recently addressed by the Third District Court of Appeal . . . . Judge Cope wrote for the court: 'Simply put, a defendant can be convicted of both felony murder and the qualifying felony because the felony murder statute says so.'" (quoting Green v. State, 680 So. 2d 1067, 1068 (Fla. 3d DCA 1996))).
The origins of the merger doctrine have been explained as follows:
Conceived in the nineteenth century, the merger doctrine was developed . . . as a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or "predicate") felony committed by the defendant was assault. The name of the doctrine derived from the characterization of the assault as an offense that "merged" with the resulting homicide. State v. Godsey, 60 S.W.3d 759, 774 (Tenn. 2001) (quoting People v. Hansen, 9 Cal. 4th 300, 36 Cal. Rptr. 2d 609, 885 P.2d 1022, 1028 (Cal. 1994), overruled on other grounds by People v. Sarun Chun, 45 Cal. 4th 1172, 91 Cal. Rptr. 3d 106, 203 P.3d 425 (Cal. 2009)).
With respect to the merger doctrine being one of preserving legislative intent, the Tennessee Supreme Court has explained:
Courts have generally declined to hold that the merger doctrine implicates any principles of constitutional law. Instead, courts have viewed the merger doctrine as a principle for preserving legislative intent and, more specifically, as a principle that preserves "some meaningful domain in which the Legislature's careful graduation of homicide offenses can be implemented." Id. (quoting Hansen, 885 P.2d at 1028).
The court observed that "the doctrine has been applied largely in those states where the felony murder statute fails to specifically list the felonies capable of supporting a felony murder conviction." Id. at 774-75.
In a prior decision, the Court also recognized this distinction.
In Robles v. State, 188 So. 2d 789, 792 (Fla. 1966), the Court distinguished between a felony-murder statute that provided that "any" felony could serve as a basis for felony murder and an enumerated felony-murder statute, such as Florida's.
In that case, the defendant asserted that the facts of the case-where the victim was killed during the course of a burglary-were not appropriate for the application of the felony-murder rule. Id. at 791.
The defendant directed the Court's attention to a line of New York cases holding that the felony-murder rule does not apply unless the felony is separate and independent from the homicide and where the underlying felony is not separate and independent, the underlying felony and the homicide merge. Id. at 792.
The Court disagreed, noting the difference between the general catch-all felony-murder statute in New York and the enumerated felony-murder statute in Florida, which listed burglary as an offense on which felony-murder can be predicated:
As appellant acknowledges, the concern of the New York court, which was to preserve the integrity of the statutory degrees of homicide, resulted from the fact that the statute of that state makes a homicide committed in the perpetration of any felony first degree murder. Since the phrase "any felony" is broad enough to include even the aggravated assault that is usually involved in any homicide, the result would be that substantially every homicide would constitute first degree murder.
It was to avoid this result that the New York court adopted the doctrine that the supporting felony had to be independent of the homicide. . . .
It is obvious that the problem that motivated the New York court to adopt the above rule cannot exist under a statute like Florida's, which limits the felony-murder rule to homicides committed in the perpetration of specified felonies, not including assault in any of its forms. Id.
Accordingly, the Court concluded that the concern motivating the New York courts--preserving the integrity of statutory degrees of homicide--did not compel the same result in Florida.