Attempted Felony Murder, Attempted 1st Degree Murder and Attempted 2nd Degree Murder in Florida: What’s the Difference?

May 16, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Attempted felony murder, attempted first-degree murder, and attempted second-degree murder are charged under Florida Statutes Sections 782.04 and 777.04, which criminalize attempted murder in the state. 

In Florida, attempted murder is a very serious felony offense. But under Florida law, there are various forms of attempted murder – all of which have varying elements and carry different potential criminal penalties. This blog will compare and contrast attempted felony murder, attempted first-degree murder and attempted second-degree murder in Florida.

Attempted first-degree murder requires proof of a premeditated design to kill. Under Fla. Stat. 782.04, this means someone must have formed a specific intent to kill the victim and had to take a “substantial step” towards committing the premeditated murder – but ultimately failed to complete it. 

For someone to have attempted first-degree murder, the Florida Bar’s standard jury instructions specify that all of the following elements must be proven beyond a reasonable doubt:

• The defendant intended to commit the crime of first-degree murder
• The defendant committed an “overt act” towards the commission of that first-degree murder that went beyond mere preparation
• The defendant failed to commit the final act of first-degree murder

Attempted first-degree murder is a first-degree felony, punishable by up to life in prison. 

Note: The line between mere preparation and an overt act is a question of fact for the jury to decide. Mere preparation consists of devising or arranging the means or measures necessary to commit the crime. An overt act consists of movement toward committing the crime after mere preparation. An overt act does not have to be the last possible act toward completing the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

In Florida, premeditation exists when someone kills or attempts to kill after consciously deciding to do so. Though there is not an exact period of time that must pass between the formation of the premeditated intent to kill and the killing itself, it must be long enough to allow reflection by the defendant. Without premeditation, an attempted first-degree murder charge is unsupportable. 

By contrast, attempted second-degree murder does not require premeditation. It involves an act that is imminently dangerous to another and demonstrates a depraved mind without regard for human life. Milton v. State, 161 So.3d 1045 (Fla. 2014). 

The Florida Bar’s standard jury instructions note that for someone to be found guilty of attempted second-degree murder, the following must be proven beyond a reasonable doubt:

• The defendant committed an intentional act that could have resulted, but did not result, in the death of another
• The act was imminently dangerous to another and demonstrated a depraved mind without regard to human life
• The act went beyond mere preparation

For an act to be considered imminently dangerous to another and demonstrate a depraved mind, the following three things must be true of it:

• A person of ordinary judgment would know the act is reasonably certain to kill or do serious bodily to another
• It is done from ill will, hatred, spite, or evil intent
• It is of such a nature that the act itself indicates an indifference to human life

Attempted second-degree murder is a second-degree felony in Florida. This is punishable by up to 15 years in prison and a $10,000 fine.

Attempted felony murder is distinct from attempted first- and attempted second-degree murder. This occurs when someone perpetrates or attempts to perpetrate an “enumerated felony” – and in the process, commits a separate, intentional act that could have but did not cause the death of a victim. 

Under Fla. Stat. 782.051, many enumerated felonies can serve as the “underlying felony” for an attempted felony murder charge. These enumerated felonies include:

• Treason
• Murder or manslaughter
• Aggravated assault or aggravated battery
• Kidnapping
• Sexual battery
• Arson
• Burglary or robbery
• Aircraft piracy or carjacking
• Home-invasion robbery
• Aggravated stalking
• Murder of an unborn child by injury to the mother
• Resisting an officer with violence
• Felony act of terrorism/in furtherance of an act of terrorism

If a firearm is used during the underlying offense and/or a victim is seriously injured, attempted felony murder is a first-degree felony punishable by up to life in prison. Otherwise, attempted felony murder is a second-degree felony punishable by up to 15 years in prison.

Under certain circumstances, charging more than one type of attempted murder may violate a defendant’s double jeopardy protection under the U.S. and Florida Constitutions. In cases where dual convictions for attempted murder are sought, courts have held convictions for attempted second-degree murder and attempted felony murder violate double jeopardy, if these arise from the same course of conduct. Mitchell v. State, 830 So.2d 944 (Fla. 5th DCA 2002) 

However, there is no double jeopardy violation if attempted first-degree murder is charged with attempted felony murder. This is because attempted-first degree murder requires premeditation, which is not a requirement for attempted felony murder. Williams v. State, 90 So.3d 931 (Fla. 1st DCA 2012) 

In sum, attempted first-degree murder requires an attempted premeditated killing. Attempted second-degree murder involves an intentional act that could have but did not result in the death of a victim, which evinces a depraved mind on the part of the defendant. Attempted felony murder occurs when someone commits an intentional act during the commission of a separate felony that could have but did not result in a victim’s death.

Murder Defense Lawyer in Tallahassee, FL

If someone is concerned about a case involving alleged attempted murder, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the criminal defense attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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