Florida Court Upholds Attempted 2nd Degree Murder Conviction After Gun Goes Off During Struggle

December 19, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 4th District Court of Appeal affirmed a guilty verdict returned against a defendant for attempted second-degree murder – but the court acknowledged it was a ‘close case.’

In Florida, attempted second-degree murder is a very serious offense. It is typically charged as a second-degree felony, but it carries even more serious potential penalties if a firearm is involved.

For someone to be guilty of attempted second-degree murder in Florida, the State must prove all of the following beyond a reasonable doubt (Fla. Stat. 782.04 and 777.04):

• 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 person (other than the perpetrator) and demonstrated a depraved mind without regard for human life
• The overt act went beyond “mere preparation”

Attempted second-degree murder is typically punishable by up to 15 years in prison and a $10,000 fine (as a second-degree felony). But if a firearm is used, penalties are determined by Florida’s 10-20-Life law (Fla. Stat. 775.087). 

Under 10-20-Life, the following minimum mandatory prison sentences apply for attempted second-degree murder with a firearm:

• If the defendant carried or brandished the firearm during the offense (but they did not discharge it), a mandatory minimum sentence of 10 years
• If the defendant discharged the firearm but did not cause injury or death to another, a mandatory minimum sentence of 20 years in prison
• If the defendant discharged the firearm and a victim was injured or killed, a mandatory minimum sentence of 25 years to life in prison

Per Mendenhall v. State, 48 So. 3d 740 (Fla. 2010), the 10-20-Life law overrides the designated statutory maximum for attempted second-degree murder. Thus, even if the maximum punishment would otherwise be 15 years, a minimum sentence of 20 years must be imposed if the offense involved the discharge of a firearm.

Notably, someone may be convicted of attempted second-degree murder even if a person is never injured or killed. And a person does not have to develop a specific intent to kill the victim to be convicted of attempted second-degree murder. This makes Florida one of only two states in the country to have such a law. Brown v. State, 790 So.2d 389 (Fla. 1999)

For purposes of establishing mens rea for attempted second-degree murder, the State must only prove the defendant acted with a depraved mind. Per Holmes v. State, 278 So. 3d 301 (Fla. 1st DCA 2019), this means:

• 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
• It is of such a nature that the act itself indicates an indifference to human life

Note: For a comprehensive breakdown of Florida’s attempted second-degree murder law and the legal controversy surrounding it, click here.

Though there does not have to be a specific person targeted for murder, attempted second-degree murder still does require the act(s) that produced the charge to have been intentional. In the vast majority of cases, someone can’t be convicted for attempted second-degree murder because of an accident.

But certain cases seem to carve out a very narrow exception to this general rule. If a defendant’s actions prior to the “accident” were reasonably certain to kill or do bodily injury to another and done with a depraved mind, an attempted second-degree murder conviction may still occur.

This was made clear in a new case from Florida’s 4th District Court of Appeal, which involved a defendant who was convicted of attempted second-degree murder after his gun discharged during a struggle with an officer. 

Let’s evaluate Kenyon v. State and discuss what it means for defendants charged with attempted second-degree murder in Florida.

KEY CASE: Kenyon v. State, Fla. 4th DCA (December 10, 2025)

In Kenyon, the defendant (Kenyon) was at a sports bar when officers attempted to arrest him on a violation of probation (VOP) warrant. Officer Singh identified himself and asked Kenyon to step outside. Kenyon became defensive and moved towards the exit.

As Kenyon neared a pool table, he began physically resisting the officers – chest-bumping one of them. A moment later, Kenyon bent over to reveal his waistband and pulled out a firearm, before pointing it at Officer Singh.

Officer Singh yelled that Kenyon had a gun, and a struggle for the firearm ensued. During that struggle, the muzzle of the firearm was pointed at Officer Singh’s chest. The two eventually fell to the ground beneath the pool table, and Kenyon’s firearm went off. Officer Singh was not hit.

Following the discharge of Kenyon’s firearm, Kenyon again pointed his gun towards Singh’s chest. Kenyon then attempted to roll under the table and rerack the firearm. However, before he could do so, other officers present began firing at Kenyon. 

Kenyon was shot multiple times, and Officer Singh was shot in the foot (by a bullet from another officer). Kenyon was immediately taken into custody and charged with attempted second-degree murder, along with other crimes. 

At trial, Kenyon moved for a judgment of acquittal (MJOA) on the attempted second-degree murder charge. Kenyon argued that the evidence was insufficient to prove he acted with malice, ill will, hatred, or an evil intent against Officer Singh (primarily because he did not know Officer Singh before the incident). 

Kenyon also argued attempted second-degree murder could not be proven because the State did not establish that the discharge of the firearm was intentional. 

Kenyon asserted this was an accidental result of his struggle with Officer Singh, and that as a result, he did not deliberately commit an imminently dangerous act demonstrating a depraved mind.

The trial judge denied Kenyon’s MJOA request, and he was convicted at trial. On appeal to the 4th District Court of Appeal, Kenyon renewed his argument that he was not proven guilty of attempted second-degree murder as a matter of law. 

The 4th DCA disagreed and affirmed his conviction. Notably, the 4th DCA considered Kenyon a close case, as neither Kenyon’s argument nor the State’s relied upon case law that was precisely analogous to what occurred. The 4th DCA observed:

“The State relies on cases holding that the defendant’s discharge of a gun constitutes an act imminently dangerous to another and evincing a depraved mind, but those cases are factually dissimilar to this one, in that they involved defendants who pointed a firearm directly at the victim and fired it; none of the State’s cases involved a struggle over the gun… Kenyon relies on cases that are distinguishable from this one, as they involve facts leaning to the less culpable, “mere recklessness” side of the second-degree murder equation.”

Despite this, the 4th DCA found that even if the firearm discharge was not proven to have been intentional, it did not matter. The 4th DCA considered the remainder of Kenyon’s actions (even without the firearm discharge) sufficient for a “rational trier of fact” to conclude he committed attempted second-degree murder:

“[T]he trial court properly denied Kenyon’s motion for judgment of acquittal because the evidence, viewed in the light most favorable to the State, was sufficient for a rational trier of fact to find all the elements of attempted second-degree murder. Kenyon’s behavior — brandishing a firearm, pointing it directly at Officer Singh’s torso, and engaging in a violent struggle for the weapon that resulted in its discharge — constituted acts imminently dangerous to another and demonstrating a depraved mind without regard for human life.”

“Despite being in a crowded bar, confronted by multiple uniformed officers, Kenyon pointed the loaded gun at Officer Singh, resisted the officer’s efforts to disarm him, tried to bring the gun toward the officer’s torso, engaged in a struggle that resulted in the discharge of his weapon, and then attempted to rerack the firearm to make it operational again. The attempt to rerack the firearm is probative of Kenyon’s mental state during the earlier free-for-all, providing further evidence that he harbored the requisite ill will, hatred, or evil intent to support the charge of attempted second-degree murder. Kenyon’s interpretations of the evidence are valid jury arguments, but all conflicts in the evidence, and reasonable inferences to be drawn from the evidence, are resolved in favor of the verdict.”

In essence, the 4th DCA reasoned that because Kenyon did all of the following, a “rational” jury could find Kenyon’s mental state (mens rea) was consistent with the “depraved mind”

Florida’s attempted second-degree murder law requires (and that his actions were imminently dangerous to human life):

• Pulled out his firearm 
• Pointed it directly at Officer Singh’s chest
• Engaging in a violent struggle for the weapon when Officer Singh attempted to take it
• Attempted to rerack the weapon after the discharge occurred, which may have resulted in him injuring or killing an officer if he had the chance to fire (before he was shot)

In sum, Kenyon v. State, Fla. 4th DCA (December 10, 2025) is a significant development in Florida’s case law surrounding attempted second-degree murder.

Florida’s 4th District Court of Appeal (Southeast Florida) found that:

• Kenyon pulled a gun on officers when they went to arrest him for violating his probation
• During an ensuing struggle between Kenyon and Officer Singh, Kenyon pointed the gun at Officer Singh’s chest, and attempted to rerack it after it fired for the first time
• Even though the actual discharge of the firearm was not proven to have been intentional, the rest of Kenyon’s deliberate actions evinced a “depraved mind” and placed the lives of officers at risk
• As a result, the jury could “rationally” find Kenyon committed attempted second-degree murder, requiring the verdict to be affirmed

Because it is one of the first cases in Florida to assess whether unintentional firearm discharges can still result in an attempted second-degree murder conviction, Florida’s criminal defense community should be aware of Kenyon. 

Even if a firearm is accidentally discharged and the projectile does not hit anyone, attempted second-degree murder can still be proven if the defendant committed one or more intentional acts leading up to the discharge of the firearm that were:

• Imminently dangerous to human life, and; 
• Were the product of a “depraved mind”

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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