Attempted Second Degree Murder vs. Attempted Manslaughter by Act in Florida

July 18, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, attempted second-degree murder and attempted manslaughter by act are both very serious offenses. Attempted second-degree murder (Fla. Stat. Sections 782.04(2) and 777.04) is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine. Attempted manslaughter by act (Fla. Stat. Sections 782.07 and 777.04) is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine.

These two laws in Florida are quite unique – as neither actually requires that the defendant have a specific intent to kill someone at the time the “attempt” takes place. So, what is the difference between them? This article will explore the answer to that question. 

Attempted Second-Degree Murder

The first of these offenses is attempted second-degree murder, a second-degree felony punishable by up to 15 years in prison and a $10,000 fine.

For someone to be proven guilty of attempted second-degree murder, the State must establish the following beyond a reasonable doubt:

• The defendant intentionally committed an overt act that could have but did not result in the death of a victim 
• The act was imminently dangerous to another (other than the perpetrator) and demonstrated a depraved mind without regard for human life
• The overt act went beyond “mere preparation”

In Florida, mere preparation is defined by devising or arranging the means to commit a crime (not overt action). By contrast, an overt act requires physical movement to commit the offense, though it does not have to be the last possible act before its completion. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018)

Attempted second-degree murder requires that someone have a depraved mind when they perform the allegedly criminal act.

Florida notes that someone acts with a “depraved mind” when all of the following are true:

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

Florida’s attempted second-degree murder law has faced constitutional challenges – as some have argued that attempted murder requires a specific intent to kill a victim (or victims). But the Florida Supreme Court was unpersuaded, and upheld the state’s attempted second-degree murder statute in 1999. Brown v. State, 790 So.2d 389 (Fla. 1999). 

This means that if someone is accused of attempted second-degree murder, the State does not have to prove the defendant acted to kill the alleged victim but failed. A conviction can be supported as long as the State establishes an intentional and imminently dangerous act occurred that was reasonably certain to cause death or great bodily harm or successful, and was done with a “depraved mind.”

Some examples of acts that may constitute attempted second-degree murder (Fla. Stat. Sections 782.04(2) and 777.04) include:

• A man, furious after being insulted at a bar, pulls out a gun and fires multiple shots near a person who insulted him as they run away
• An enraged man stabs another in the shoulder during a heated argument, attempting to cause him serious harm (though not necessarily death)
• Someone throws a molotov cocktail into a building lobby crowded with people as a prank, causing a mad dash to evacuate – but nobody dies 

Attempted Manslaughter

Like Florida’s attempted second-degree murder law, the prohibition of attempted manslaughter by act (Fla. Stat. Sections 782.07 and 777.04) is also broad. Attempted manslaughter by act is a third-degree felony punishable by 5 years in prison and a $5,000 fine.

For attempted manslaughter by act to be committed, the State must establish the defendant did all of the following beyond a reasonable doubt:

• Committed an overt act that was not legally justifiable or excusable 
• The act was of such a nature that it could have caused the death of the alleged victim 
• The act was intentional, though not necessarily intending to kill

As is the case with the attempted second-degree murder law, Florida’s Supreme Court has upheld the attempted manslaughter by act statute’s lack of a requirement to kill. If someone committed an “overt act” that was intentional and unjustifiable, which could have caused death but did not, the elements of attempted manslaughter by act are satisfied. State v. Montgomery, 39 So. 3d 252 (Fla. 2010)

Some hypothetical examples of attempted manslaughter by act may include:

• A woman intentionally pushes her boyfriend in the middle of a heated argument near a balcony out of anger, causing him to nearly fall over the rail
• A security guard angry at a shoplifter chases him down and pistol whips him in the head, causing a skull fracture but not death
• A person deliberately throws a heavy object at a person’s head in the middle of a scuffle, missing by inches (intentional and dangerous but no depraved mind)

The key differences between attempted second-degree murder and attempted manslaughter by act lie in how these are punished and their elements. The first notable distinction is that the former offense (attempted second-degree murder) is a second-degree felony, while attempted manslaughter by act is a third-degree felony.

However, both of these offenses are subject to Florida’s 10-20-Life law. This statute (Fla. Stat. Section 775.087) institutes a scheme of mandatory minimum sentences for felonies involving firearms in Florida.

The law requires judges impose the following minimum sentences, with no legal discretion, depending on the facts of the case:

• If the firearm is carried on the defendant’s person or displayed/brandished during the commission of the offense, the defendant must receive a mandatory minimum prison sentence of 10 years
• If the firearm is discharged during the commission of the offense, even if this does not cause injury or death, the defendant must receive a mandatory minimum prison sentence of 20 years 
• If the firearm is discharged and a victim is injured or killed, the defendant must receive a mandatory minimum sentence of 25 years and up to life in prison

Florida’s 10-20-Life law overrides the typical maximum sentences for the felonies covered by the statute, if the mandatory minimum imposed exceeds the usual statutory sentencing cap. Mendenhall v. State, 48 So. 3d 740 (Fla. 2010). 

Another key difference between these laws is the mens rea (mindset) of the defendant at the time the act was allegedly committed. Though neither require intent to kill, attempted second-degree murder does require that the defendant acted with a depraved mind. The alleged act must be imminently dangerous, reasonably certain to kill or injure another, and show a disregard for human life. 

On the other hand, attempted manslaughter by act does not require proof of a depraved mind (‘ill will, spite, hatred or evil intent”) or reasonable certainty of killing if the act succeeds. Rather, the law simply requires the commission of an intentional act that could have caused death (even if not reasonably certain) and was not legally justifiable or excusable. 

Common defenses to both of these charges may include:

• Justifiable use of deadly force (self-defense): The defendant must have reasonably believed the use or threatened use of force was necessary to prevent death or great bodily harm to themselves or another (often a Stand Your Ground claim)
• Lack of intent: If the act was not deliberately committed (such as an accidental firearm discharge), this negates culpability
• Alibi or mistaken identity
• No depraved mind (if someone is charged with attempted second-degree murder)
• No imminent danger of the act (attempted second-degree murder) or possibility of death (attempted manslaughter by act)

In sum, attempted second-degree murder and attempted manslaughter by act are both very serious felonies in Florida. Though attempted second-degree murder (a second-degree felony) is generally more harshly punished than attempted manslaughter by act (a third-degree felony), Florida’s 10-20-Life law imposes harsh mandatory minimum sentences for defendants charged with either offense if it involves a firearm. 

Though each charge is very serious, many legally valid defenses exist if someone is arrested and formally charged with attempted second-degree murder or attempted manslaughter by act. These include self-defense, lack of intent to commit the act, alibi, lack of mens rea (criminal intent),  no deprived mind/imminent danger, and more. 

If someone is concerned about being charged with murder, manslaughter or a related offense, 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.

Criminal Defense Attorney in Tallahassee, FL

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 Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges 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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