Richard Hornsby said on weshtv that the judge will have to put the 3rd degree murder based on child abuse in. Apparently he thinks West is making too big a deal about it. He thinks that a case like this is not what the legislature had in mind when they crafted their child abuses statute but it has been used that way and only they can fix it.
Hornsby has been wrong on quite a few things. If the state is going to argue this, then it needs to be in front of the defendant as a charge, because there is a question about knowing, on the part of defendant, whether the victim is a child. I'd like Hornsby to point to a case where the jury instruction, BUT NOT the charging information, called for finding 3rd degree murder on aggravated child abuse. There has to be "An intentional act that could reasonably be expected to result in physical or mental injury to a child," which goes beyond the act being intentional.
I won't vouch positively for Judge Nelson, so no prediction on how she'll rule on this no-brainer.
Edit to add link to FS 827.03 - Abuse, aggravated abuse, and neglect of a child
Zimmerman has to be found guilty of this (uncharged) crime, in order to fit in Murder 3 on the state's legal theory.