FL Supreme Court Reverses Lower Court’s Finding of ‘Depraved Mind’ In 2nd Degree Murder Case

March 5, 2026 Don Pumphrey, Jr. Violent Crimes Social Share

In a second-degree murder and attempted second-degree murder case, Florida’s 2nd District Court of Appeal found  sufficient evidence existed that the defendant acted with a ‘depraved mind,’ not in the ‘heat of passion.’ However, the Florida Supreme Court reversed this decision.

In Florida, second-degree murder and attempted second-degree murder (Fla. Stat. 782.04(2) and Fla. Stat. 777.04) are very serious offenses. For someone to be guilty of second-degree murder, the State must prove all of the following beyond a reasonable doubt (Antoine v. State, 138 So.3d 1064, 1074 (Fla. 4th DCA 2014)):

• The victim is dead
• The death was caused by the criminal act of the defendant
• There was an unlawful killing of the victim by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life

Second-degree murder is typically considered a first-degree felony, punishable by up to 30 years in prison and a $10,000 fine. However, if a firearm is used to commit the offense, second-degree murder carries up to life in prison (pursuant to Florida’s 10-20-Life law, Fla. Stat. 775.087).

For someone to be guilty of attempted second-degree murder in Florida, all of the following must be proven 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)
• The act demonstrated a depraved mind (malice) without regard for human life
• The overt act went beyond “mere preparation”

Attempted second-degree murder is typically a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. However, if the offense is committed with a firearm, it can carry a sentence of up to life in prison under the 10-20-Life law (if the victim was injured by a firearm discharge). For more, click here.

Note: Florida’s attempted second-degree murder law has been the subject of significant legal controversy in the state – with many advocates arguing the law is illogical and unconstitutional. To learn more, click here.

You may notice that a common element of second-degree murder and attempted second-degree murder is the presence of a “depraved mind.”

Per Holmes v. State, 278 So. 3d 301 (Fla. 1st DCA 2019), an act done with a “depraved mind” involves all of the following:

• 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 (e.g. malice)
• It is of such a nature that the act itself indicates an indifference to human life

Though Florida’s courts typically find that a preexisting relationship between the victim and the defendant supports the existence of a depraved mind (e.g. if there is lingering animosity between the two parties), this is not an absolute requirement. A depraved mind can develop in a moment, but this is less common (Wiley v. State, 60 So.3d 588 (Fla. 4th DCA 2011)). For more, click here.

If someone is charged with second-degree murder or attempted second-degree murder, they may move in the form of a pretrial motion to dismiss or a motion for judgment of acquittal (MJOA) at trial to dismiss or reduce the charges. They may do so on the basis that they either:

• Acted in the “heat of passion” (e.g. manslaughter or attempted manslaughter by act), not with a depraved mind (ill will, spite, hatred, evil intent)
• Acted in lawful self-defense, supporting immunity/dismissal under Florida’s Stand Your Ground law

In the event that such a motion to dismiss or motion for judgment of acquittal (MJOA) is made in a second-degree murder or attempted second-degree murder case, a trial judge has three options:

• Keep the charge(s) as they are (e.g. deny the motion to dismiss/MJOA outright)
• Reduce the charge(s) to manslaughter or attempted manslaughter by act (second-degree and third-degree felonies, respectively), finding that the evidence supports only that the defendant had an “emotional overreaction” (Poole v. State, 30 So.3d 696 (Fla. 2d DCA 2010))
• Grant the motion outright, resulting in the charge(s) being dismissed (e.g. if a defendant was clearly acting in lawful self-defense/defense of others/to stop imminent commission of a forcible felony)

Note: To learn about the differences between first-degree and attempted first-degree murder, second-degree and attempted second-degree murder, and manslaughter, click here.

Sometimes, a trial judge will deny a defendant’s motion to dismiss or MJOA, finding sufficient evidence in the record exists to support the idea that the defendant acted with a depraved mind. If that occurs and a defendant is convicted by a jury in Florida, they may appeal their conviction to the District Court of Appeal that has jurisdiction over the trial court.

If and when such an appeal is made, the DCA will make a ruling on whether the defendant acted with a depraved mind or not as a matter of law. Though District Courts of Appeal are reluctant to reverse jury determinations, reversals will occur if no reasonable jury could have concluded that the defendant acted with a depraved mind (Wiley).

But what happens when even the District Court of Appeal has strong disagreements (among the judges that sit on the court) about whether the evidence at trial showed the defendant acted with a depraved mind? In that case, the Florida Supreme Court is more likely to decide to take the defendant’s appeal and resolve the case “once and for all.”

In one major Florida case, a defendant’s MJOA at trial was denied by the judge – and he was convicted of second-degree murder and attempted second-degree murder. His appeal was heard by Florida’s 2nd District Court of Appeal (Greater Tampa area) – where a divided panel ruled against him (e.g. his convictions were affirmed).

The defendant then appealed from the 2nd DCA to the Florida Supreme Court – which reversed the defendant’s convictions. The Florida Supreme Court found there was insufficient evidence in the record to support the jury’s verdicts, agreeing with a dissenting judge on the 2nd DCA.

Let’s take a look at that case – Black v. State, 95 So.3d 884 (Fla. 2d DCA 2012) – and what it means for defendants in Florida accused of second-degree and attempted second-degree murder.

KEY CASE: Black v. State, 95 So.3d 884 (Fla. 2d DCA 2012)

In Black, the defendant (Black) struck multiple victims with his automobile, killing a woman and her unborn child while injuring another man. According to the 2nd DCA:

“Black got into his Honda Accord and went on a deadly rampage that involved two separate collisions with innocent people on the streets and ended when his car collided with a tree. Willie Grimsley, the first victim, described the first collision and Black’s actions. Grimsley was standing with other would-be laborers in a parking lot outside a labor pool. He heard a driver in the street slam on his brakes. The driver, who was later identified as Black, turned into the parking lot and accelerated in a straight line directly into the group. Black struck a man on a bicycle, and the man fell off and knocked Grimsley down. Black then struck Grimsley and pinned him against a parked car. As Grimsley looked on.”

“Black backed up and drove out of the parking lot. Black headed away in the same direction he had been traveling before driving directly at the group. At about 6:47 a.m., a police officer received a dispatch about the crash at the labor pool location. It took him about a minute to arrive at the scene. He encountered Grimsley and the bicyclist lying on the ground and waited for EMS to arrive. The officer put out a BOLO for Black’s vehicle, and his partner found the Accord crashed into a tree approximately three-quarters of a mile away. A witness to the second crash had observed Black’s car drive down the street, cross into the oncoming lane of traffic, and veer diagonally toward a woman on the sidewalk. The woman, who was seven months pregnant, unsuccessfully tried to dodge the car. The car hit the woman, lifted her up, and then hit her again. Both she and her unborn fetus were killed.”

At trial, Black argued the State failed to provide sufficient evidence that he acted with a depraved mind (e.g. malice) towards the victims – which was required to support his second-degree and attempted second-degree murder convictions as a matter of law.

Black said that while he may have driven recklessly (e.g. showed willful disregard for life and limb), he did not act maliciously towards the victims as individuals. The judge denied Black’s MJOA request, finding the “totality of the circumstances” supported the issue being resolved by the jury. The jury ultimately found Black guilty on all counts.

On appeal to the 2nd DCA, Black reiterated the claim that while his conduct constituted reckless driving (e.g. may have supported a vehicular homicide conviction for the death of the mother and her unborn child), the evidence presented could not sustain a second-degree murder or attempted second-degree murder conviction as a matter of law.

The 2nd DCA disagreed, finding Black did not “accidentally” hit the victims and thus, acted with malice towards them. Moreover, there was no “context” (e.g. fleeing law enforcement) indicating Black’s conduct was driven by anything other than “malice” towards the victims:

“In all three of these cases on which Black relies, the defendant’s motive for driving recklessly was to elude capture by the police. Here, however, there was no evidence that Black was fleeing the police. In fact, the officers did not come upon his vehicle until after the second collision. Instead, the only evidence of Black’s intent established that he was on a suicide mission that involved making big headlines and going out with a bang. His actions were fully consistent with his own stated intent. And there was no evidence that Black failed to see the victims until it was too late, as in Hicks and Michelson, or lost control over his vehicle, as in Ellison. Rather, he drove directly into one victim, backed away from the scene, and almost immediately drove across two lanes of traffic directly into the second and third victims.”

“We are mindful of this court’s observation in Hicks that second-degree murder generally involves a defendant who knows the victim or bears enmity towards the victim. … However, section 782.04(2) does not require such a relationship between the defendant and the victim. In fact, malice murder convictions have been affirmed based on similar evidence of the defendant’s use of his vehicle to kill perfect strangers … Accordingly, we conclude that the State presented sufficient evidence of malice to withstand the motion for judgment of acquittal.”

Despite the majority’s insistence that Black was guilty of second-degree murder and attempted second-degree murder, Judge Northcutt of the 2nd DCA disagreed. Judge Northcutt authored a dissenting opinion, arguing Black’s “broader motive” was irrelevant – and that the State failed to prove Black acted with “malice” (e.g. depraved mind) towards the victims themselves:

“The majority’s effort to distinguish this state’s controlling precedents on the ground that Black apparently was attempting suicide, as opposed to fleeing from the police, widely misses the point. In both scenarios, the defendants were motivated by something other than malice toward the victims, and in both scenarios the defendants’ extreme recklessness was legally insufficient to establish the actual malice element of second-degree murder. The majority has cited a handful of out-of-state decisions that it believes are consistent with its result. But it has failed to unearth a single Florida authority that supports it, thus underscoring that Black’s convictions for second-degree murder and attempted second-degree murder are contrary to Florida law.”

Judge Northcutt did not “win the battle” – but he did “win the war.” Two years later, Florida’s Supreme Court reversed the 2nd DCA’s decision in a brief opinion – Black v. State, 157 So.3d 1041 (Fla. 2014). The Court wrote:

“Upon review of the response to this Court’s Order to Show Cause dated July 16, 2013, the Court has determined that it should accept jurisdiction in this case. It is ordered that the Petition for Review is granted, that the Second District Court of Appeal’s decision in this case is quashed, and this matter is remanded for a new trial. No Motion for Rehearing will be entertained by the Court.”

Though the Florida Supreme Court did not spill any ink explaining why it disagreed with the 2nd DCA’s majority opinion, it is safe to say that the Court embraced Judge Northcutt’s view that the evidence did not support the finding that Black acted with a “depraved mind.” As a result, Black received a new trial.

In sum, Black v. State, 95 So.3d 884 (Fla. 2d DCA 2012) marks a significant development in Florida’s corpus of case law on the issue of second-degree murder and attempted second-degree murder. The 2nd DCA majority found that:

• Black struck multiple victims, killing a woman and her unborn child while injuring a man, because he intended to commit suicide and “go out with a bang”
• This supported the conclusion that Black acted with “malice” (e.g. ill will, spite, hatred, evil intent) towards the victims
• Because Black targeted the victims and deliberately hit them with his vehicle, he acted “maliciously” – requiring his second-degree murder and attempted second-degree murder convictions to be affirmed

However, Judge Northcutt of the 2nd DCA authored a dissenting opinion that was embraced by the Florida Supreme Court when it overruled the 2nd DCA. Judge Northcutt concluded:

• Black’s motive was not to harm to the specific victims because he had “malice” towards them – but to become famous after his death 
• Black’s reckless driving was the cause of the victims’s deaths – but the evidence did not support a finding that he acted with a “depraved mind” (ill will, spite, hatred, evil intent) towards the specific people that he hit
• Black did not know any of the victims, had never seen them before, and did not harbor “malice” towards them as individuals when he struck them
• As a result, his convictions could not be supported

Florida’s criminal defense community should take note of Black v. State, 95 So.3d 884 (Fla. 2d DCA 2012) and its subsequent reversal by the Florida Supreme Court – as it reveals how courts analyze whether a defendant truly acted with a “depraved mind” (e.g. malice) in second-degree and attempted second-degree murder cases.

If someone is arrested and formally charged in Florida in a case and has a potential entrapment defense, 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 criminal 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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