Defenses to Attempted Manslaughter by Act in Florida

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

In Florida, attempted manslaughter by act is a very serious offense. It is a third-degree felony, punishable by up to 5 years in prison, 5 years probation and a $5,000 fine.

If someone is charged with attempted manslaughter by act (in violation of Fla. Stat. Section 782.07 (manslaughter) and 777.04 (attempt)), this can feel like a hopeless situation. However, there are various defenses that exist in Florida to the charge of attempted manslaughter by act, one or more of which may be applicable to any given case. This blog will explore these defenses. 

For someone to be proven guilty of attempted manslaughter by act in Florida, the State must establish the following elements beyond a reasonable doubt:

• The defendant 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

Important: Like attempted second-degree murder, Florida does not require the State to show that someone specifically intended to kill a particular victim for them to be found guilty of attempted manslaughter by act. If all the above statutory elements are established beyond a reasonable doubt, the jury must convict. State v. Montgomery, 39 So. 3d 252 (Fla. 2010)

For attempted manslaughter by act to occur, the “act” must go beyond mere preparation. Mere preparation involves devising or arranging the means or measures necessary to commit a crime. An overt act consists of some actual movement towards committing the crime, but does not have to be the last possible act towards completing the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

Critically, for attempted manslaughter by act to occur, the act must have been an intentional one that could have caused death (but did not) and was not legally justifiable or excusable. There is no such crime as attempted manslaughter by negligence. Taylor v. State, 444 So.2d 931 (Fla. 1983).

Examples of intentional acts that may qualify as attempted manslaughter by act (depending on the circumstances) may include:

• Someone punches an elderly person in the face during an argument, causing them to fall and hit his head on the pavement, but he survives (intentional act that could have caused death but did not)
• Throwing a very heavy object from a balcony at or very close to someone (even if not directly intended to kill)
• Firing a gun in near someone to scare them without sufficient provocation/self-defense

Conversely, examples of acts that would not be considered attempted manslaughter by act may include: 

• Accidentally dropping a hammer off a roof and hitting someone standing below
• Verbal threats (“I’m going to kill you,” etc.) without any physical action taken
• Playful sparring between two friends, one of whom gets hit hard and falls down

Various lawful defenses exist to the charge of attempted manslaughter by act in Florida. One of these is self-defense or defense of others. If someone deployed force in a manner that allegedly constituted attempted manslaughter by act – but it was a reasonable response to an imminent threat of death or great bodily harm to the defendant or others – this is a strong potential defense.

Note: Florida’s Stand Your Ground law (Fla. Stat. Section 776.012) explicitly permits someone to use either deadly or nondeadly force as long as this is proportionate and necessary to respond to the imminent threat. 

Another potential defense is defense of property. This may apply if someone deployed force that allegedly constituted attempted manslaughter by act to prevent a forcible felony in someone’s home or vehicle.

Examples of when this may serve as a defense in an attempted manslaughter by act case include:

• A person unlawfully breaks into someone’s home, and they knock the intruder out with a bat
• A store clerk fires a warning shot at a would-be robber after he demands money and reaches for his waistband
• The occupant of a vehicle non-fatally stabs someone attempting to carjack them to protect himself and his child who are seated inside (also may qualify as self-defense or defense of others)’

However, other circumstances do not authorize the use of potentially deadly force. Examples of when such force is not permitted may include shooting at a shoplifter who swiped a bag of chips, or beating someone with a crowbar after they step onto your lawn uninvited. 

Another defense to an attempted manslaughter by act charge is that there was no intentional use of force. As the statute requires a person to deliberately take potentially deadly action, attempted manslaughter by act charges do not apply to accidents (such as an unintentional discharge of a firearm that does not hurt or kill anyone). 

Yet another defense is a lack of an overt act. If someone plans or intends to commit an act that may qualify as attempted manslaughter by act – but never goes through with it (such as having the idea to throw a piece of furniture off a balcony at a passerby but never actually doing so), this does not violate Florida law.

Another defense may be mistaken identity or alibi. If the evidence that the defendant committed the alleged act is weak (such as grainy surveillance footage, unreliable eyewitness accounts, etc.), a mistaken identity defense may be effective.

If the defendant has an alibi, the following evidence can be particularly effective in corroborating it:

• GPS data
• Texts or phone records
• Witness accounts or surveillance clearly showing the defendant in another location

An additional defense to attempted manslaughter by act in Florida is involuntary intoxication. Though this is an uncommon defense, it may apply if the intoxication (ingestion of alcohol, drugs, etc.) was caused by force, fraud or medical necessity – and the defendant was incapable of forming intent to commit the alleged act at the time as a result. Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997)

In rare cases, an insanity (NGRI) defense may be used if the defendant was suffering from a severe mental disease or defect.

Florida uses the M’Naghten Rule (Fla. Stat. 775.027), which requires one of the following to be true:

• The defendant did not appreciate the nature of what they were doing due to the mental disease or defect
• The defendant did know what they were physically doing, but did not appreciate that what they were doing was wrong due to the mental disease or defect

Note: Even if a defendant is found not guilty by reason of insanity, this does not mean they go free automatically. Even though they are acquitted of the crime, a finding of insanity triggers a commitment process under Fla. R. Crim. P. 3.218 to determine if the defendant is mentally ill, a danger to themselves or others, and is unable to survive safely without supervision. If so, the person is committed to a mental health facility. 

Though there are many lawful defenses to a charge of attempted manslaughter by act in Florida, certain others are not considered legally valid (“non-defenses”). These include:

• “I was drunk/high”: Florida has abolished voluntary intoxication as a defense (Fla. Stat. 775.051)
• “I didn’t mean to kill them”: Under State v. Montgomery, attempted manslaughter by act does not require proof of intent to kill
• Factual impossibility: Taking an action that could not have actually killed the victim, but that you believe at the time could have (attempting to shoot someone with a gun that turns out to be unloaded) is still unlawful
• “I was angry/upset/provoked”: Unless the force used is proportionate to threat of imminent death or great bodily harm to the defendant or others (or the prevention of a forcible felony in or on the defendant’s property), this is not a valid defense

In sum, attempted manslaughter by act (Fla. Stat. Section 782.07 (manslaughter) and 777.04 (attempt)) is a very serious third-degree felony, punishable by up to five years in prison and a $5,000 fine. The law does not require that a defendant intended to kill someone – only that they intentionally took legally unjustifiable action that could have killed a victim if successful, but did not. 

Various legal defenses exist to an attempted manslaughter by act charge, one or more of which may apply in a given case. These include: self-defense or defense of others, accident/lack of intent, lack of an overt act, alibi, mistaken identity, insanity, involuntary intoxication, and more.

If someone is concerned about being charged with 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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