Can Someone Be Convicted Of Attempted Murder for Firing Into the Air in Florida?

June 17, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

If someone fires a gun into the air in Florida, various criminal charges may be brought. Due to the potential for the projectile to injure or kill individuals on the ground, someone may face charges ranging from reckless discharge of a firearm to attempted second-degree murder.

But given a lack of specific intent to kill another person, can someone really be convicted of attempted second-degree murder just for firing a gun into the air – even if nobody is injured or killed? This article will explore the answer to that question.

A common charge brought if someone has been accused of firing a gun in the air is reckless discharge of a firearm (Fla. Stat. Section 790.15). For someone to be found guilty of reckless discharge of a firearm, the State must prove someone did any of the following beyond a reasonable doubt:

• Discharged a firearm in a public place without lawful justification (streets, parks, etc.)
• Discharged a firearm over a public roadway without lawful justification
• Recklessly or negligently discharged a firearm outdoors on private, residential property without lawful justification

Reckless discharge of a firearm is typically classified as a first-degree misdemeanor, punishable by up to 1 year in jail and a $1,000 fine.

If someone knowingly and willfully discharges a firearm from a vehicle within 1,000 feet of another, this is chargeable as a second-degree felony – punishable by up to 15 years in prison and a $10,000 fine. If someone directs another person to commit second-degree felony reckless discharge of a firearm, this is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine.

Under Fla. Stat. Section 790.15, someone may not be convicted of reckless discharge of a firearm if they:

• Lawfully defended life or property, or was performing their official duties requiring the discharge of a firearm
• The discharge did not pose a reasonable risk to life, safety or property
• The discharge of the firearm was purely an accident, and there were no victims

While shooting a firearm into the air may lead to a charge of reckless discharge of a firearm, it may lead to the even more serious charge of attempted second-degree murder in some cases. But as a matter of law, is firing into the air truly sufficient to support a conviction for such a serious crime?

For someone in Florida to be convicted of attempted-second degree murder – a second-degree felony punishable by up to 15 years in prison and a $10,000 fine, the State must prove the following elements beyond a reasonable doubt:

• The defendant intentionally committed an overt act that could have resulted in the death of a victim but didn’t
• That act was imminently dangerous to another, and demonstrated a depraved mind
• The act went beyond mere preparation 

An action is considered to have evinced a “depraved mind” if all of the following are true:

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

Florida’s courts have held that intentionally firing a deadly weapon in close proximity to others satisfies the “intentional act” requirement for purposes of charging attempted second-degree murder. State v. Brady, 745 So.2d 954 (Fla. 1999). This may include firing a gun into the air – though courts have not ruled on this issue in isolation. 

If someone fires into the air, elements one and three of attempted second-degree murder are satisfied. This is because an intentional, overt act was committed that could have resulted in someone’s death, and the act went beyond mere preparation. Milton v. State, 161 So.3d 1245 (Fla. 2014) 

However, if someone is charged with attempted second-degree murder solely for firing into the air without an underlying intent to kill, this could present complications for a potential prosecution. This is because firing in the air may not be an act “imminently dangerous to another” and may not provide proof of a “depraved mind.”

Recall that for an act to be considered imminently dangerous and demonstrate a depraved mind, an ordinary person must believe that the charged action is reasonably certain to kill someone or do serious bodily harm to another. 

If someone fires directly into the air without aiming at a specific person or crowd of people, it is difficult for the State to argue that it poses a significant risk of harm to others. Though the fired projectile could come down and kill an individual on the ground, this appears more a possible consequence rather than a “reasonably certain” one. Coicou v. State, 39 So.3d 237 (Fla. 2010) 

However, this assessment may depend on the context. If someone fires into the air in a rural and largely unpopulated area, far away from others, this seems less likely to be considered an act of a “depraved mind” that shows reckless disregard for human life. If it were done in an extremely crowded area (such as at a concert or in a densely populated city), however, a prosecutor’s view may change.

It is important to note that Florida’s attempted second-degree murder has faced serious legal scrutiny. Most states do not have an attempted second-degree murder charge, as courts have generally held that unless someone develops a specific intent to kill, attempted murder is an inappropriate charge. 

Nevertheless, Florida has allowed the crime of attempted second-degree murder to remain on the books – opening the door to potential prosecution for acts that do not demonstrate an intent to kill. This has been the source of legal controversy since the law was upheld by the Florida Supreme Court in 2000. Brown v. State, 790 So.2d 389 (Fla. 1999). 

In sum, firing a gun into the air can result in serious criminal charges in Florida. This action alone can often support reckless discharge of a firearm – unless the discharge was in accordance with one of the enumerated exceptions within Fla. Stat. Section 790.15.

In rare cases, firing into the air may support attempted second-degree murder charges. Despite the fact that such a situation involves no underlying intent to kill, Florida law still permits a conviction if the discharge could have killed a victim (but did not), was imminently dangerous to another, and demonstrated a depraved mind. 

However, prosecutors likely will face difficulties in the event someone is prosecuted for firing into the air. This is because the act itself may not provide evidence of a depraved mind, as it may not be done with evil intent and is likely not “reasonably certain” to kill someone or do serious bodily injury. 

If someone is arrested and formally charged in Florida for attempted-second degree murder, it is critical to find experienced and trusted murder and homicide defense lawyer as soon as possible. This decision could make the difference in whether or not someone faces 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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