Defenses to Attempted Second-Degree Murder in Florida

July 8, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, attempted second-degree murder is a very serious felony offense. It is typically charged as a second-degree felony punishable by up to 15 years in prison and a $10,000 fine.

When someone is arrested and formally charged with attempted second-degree murder, this can initially seem like a hopeless situation. However, various defenses exist to this charge. This blog will discuss the defenses available if someone is charged with attempted second-degree murder in Florida.

Attempted second-degree murder occurs (under Fla. Stat. Section 782.04 and Fla. Stat. Section 777.04) when the State proves all the following elements 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”

Note: Mere preparation is defined as devising or arranging the means to commit the crime, while an overt act consists of movement to commit the crime after mere preparation. An “overt act” does not have to be the final act necessary to complete the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018); State v. Coker, 452 So. 2d 1135 (Fla. 2d DCA 1984).

It is critical to note that attempted second-degree murder does not require a specific underlying intent to kill the alleged victim. To prove someone guilty of the offense, the State must establish only that the overt act was imminently dangerous and demonstrated a “depraved mind.” Brown v. State, 790 So.2d 389 (Fla. 1999). 

Under Florida law, the following three things must be true of an act for it to demonstrate a “depraved mind” (Fla. Std. Jury Instr. (Crim.) 7.4 – Murder—Second Degree (Depraved Mind)):

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

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

However, if a firearm is involved in the commission of the offense, this triggers Florida’s 10-20-Life law for sentencing considerations. This means:

• If someone carries or displays a firearm during an attempted second-degree murder without discharging it, they face a mandatory minimum of 10 years in prison
• If someone discharges a firearm during an attempted second-degree murder and this does not cause injury or death to a victim, they face a mandatory minimum of 20 years in prison
• If someone discharges a firearm during an attempted second-degree murder and this injures or kills a victim, they face a mandatory minimum sentence of 25 years to life in prison

Given the extremely serious nature of an attempted second-degree murder charge, it is critical to understand the defenses that exist if someone is charged with this offense. One of these defenses is that the alleged act was not imminently dangerous to another and did not demonstrate a “depraved mind.”

Attempted second-degree murder requires that the act was imminently dangerous to a person other than the alleged perpetrator and demonstrated a depraved mind. In some circumstances – including when warning shots are fired – someone may be charged with attempted second-degree murder due to the fact that this does not require specific intent to kill.

But if someone discharges a firearm or otherwise acts in a manner that produces an attempted second-degree murder charge, the lack of specific intent to kill does not mean the State will be able to obtain a conviction. If the act did not imminently endanger the life of another person and/or did not satisfy the “depraved mind” criteria, it is not attempted second-degree murder.

Another common defense to attempted second-degree murder is Stand Your Ground. Under Florida’s “Stand Your Ground” law (Fla. Stat. Section 776.212(2)) a person has a right to use reasonable force (including deadly force if necessary) without a duty to retreat if the following are true:

• The person was in a place they had a legal right to be
• The person was not engaged in unlawful activity at the time 
• The person reasonably believed that force was necessary to prevent imminent death, bodily harm, or the commission of a forcible felony

If the accused was defending themselves or another and their response was proportional to the threat, a Stand Your Ground defense can be used in response to an attempted second-degree murder charge. 

Another potential defense to an attempted second-degree murder charge is the lack of an overt act. Although an overt act does not have to be the “final step” towards the completion of the underlying offense for someone to be convicted, this does require someone to do more than simply think about or plan the commission of an offense. 

If there is dispute as to whether someone took a direct action that was imminently dangerous and demonstrated a depraved mind – and instead just thought about it or planned it – this defense can be relied upon in response to an attempted second-degree murder charge.

Occasionally, an insanity defense may also be relied upon if relevant to an attempted second-degree murder charge.

Under Fla. Stat. Section 775.027, insanity is an affirmative defense that requires the defense to establish the following by clear and convincing evidence:

• The defendant was suffering from some kind of mental illness, disease, infirmity or defect
• Due to this condition, the defendant either 1) did not know what they were doing or the consequences involved, or 2) did know what they were doing but could not understand their actions were wrong

Another defense that may be relied upon in an attempted second-degree murder case is alibi or mistaken identity. If the defendant’s presence at the scene of the alleged crime is disputed, an alibi defense can be used to argue they were not present and could not have committed the charged acts.

An alibi defense can be supported by:

• Witnesses corroborating the defendant’s presence elsewhere
• Surveillance footage or GPS
• Receipts or other physical documents

In some cases, a charge of attempted second-degree murder may also be refuted on the grounds that the alleged act was insufficiently dangerous. If the overt act did not pose a reasonably certain risk of death or serious bodily injury if completed, this is not attempted second-degree murder.

Unlike the listed defenses, certain other defenses to attempted second-degree murder charges are considered legally invalid in Florida. These include:

• “I was drunk/on drugs”: Voluntary intoxication is not a defense in Florida (Fla. Stat. 775.051)
• “I didn’t actually kill anyone”: As attempted second-degree murder is an attempt charge, the law does not require that an actual victim have been killed (or injured) because the act was not completed
• “I didn’t plan it ahead of time”: Unlike attempted first-degree murder charges, attempted second-degree murder does not require premeditation (development of intent to kill and time to reflect).
• “I didn’t intend to kill anyone”: Florida’s courts have held that attempted second-degree murder does not require the State to prove the defendant had a specific intent to kill another. However, this has been the subject of legal challenges to the law. (see Brown v. State, 790 So.2d 389 (Fla. 1999))

In sum, attempted second-degree murder is a very serious second-degree felony in Florida. It is typically punishable by up to 15 years in prison and a $10,000 fine, but the use of a firearm triggers harsh minimum sentences (of up to life in prison if someone was injured) under Florida’s 10-20-Life law.

Despite the seriousness of an attempted second-degree murder charge, many defenses exist. These include a lack of a depraved mind, lack of an overt act, lack of imminent danger caused by the act, alibi, insanity, Stand Your Ground, and more. If someone is arrested and formally charged in Florida for attempted-second degree murder, it is critical to find experienced and trusted legal representation 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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