Frequently Asked Questions About Attempted Second-Degree Murder in Florida

September 5, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, attempted second-degree murder is an extremely serious criminal offense. Florida is one of the only U.S. states to have a law regarding attempted second-degree murder – so this naturally raises many questions about it. This blog will explore the answers to frequently asked questions about attempted second-degree murder (Fla. Stat. 782.04 and 777.04).

#1 – What is attempted second-degree murder?

Attempted second-degree murder is a form of attempted murder that does not require someone to intentionally try to kill a particular victim.

Though this may seem counterintuitive, Florida’s law against attempted second-degree murder is violated if all of the following are 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) and demonstrated a depraved mind without regard for human life
• The overt act went beyond “mere preparation”

Essentially, attempted second-degree murder involves someone committing an act that was imminently dangerous to one or more people, and that showed a “depraved” lack of regard for human life.

#2 – Is attempted second-degree murder a felony?

Yes, attempted second-degree murder is a very serious felony offense in Florida. It is considered a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. However, there are even more severe penalties if someone is found guilty of attempted second-degree murder with a firearm.

#3 – What are the potential penalties for attempted second-degree murder with a firearm?

Though there is ordinarily a maximum sentence of 15 years in prison under Florida law for attempted second-degree murder, penalties are even more severe if a firearm is involved. This is because Florida’s 10-20-Life law (Fla. Stat. 775.087) imposes harsh mandatory minimum penalties for attempted second-degree murder involving a firearm. 

If someone carries or brandishes a gun during an attempted second-degree murder, they must receive a mandatory minimum sentence of 10 years in prison. If the firearm is discharged (fired) and it causes no injury or death, a defendant must receive a minimum of 20 years in prison. If the discharge injures or kills a victim, the mandatory minimum is 25 years to life.

#4 – What does a “depraved mind” actually mean?

This is a key question, as the State must prove that the act charged as attempted second-degree murder was committed with a depraved mind. An act was done with a depraved mind if all of the following are true of it. Holmes v. State, 278 So. 3d 301 (Fla. 1st DCA 2019).

• 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

#5 – What does an “overt act beyond mere preparation” mean?

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 it does not have to be the last possible act towards completing the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

#6 – Can I be lawfully convicted even if it was an accident?

No – although attempted second-degree murder does not require a specific intent to kill a victim, the crime is not committed if an accident happens to create danger for one or more people. The act that serves as the basis for a charge must be deliberate and done with a depraved mind.

#7 – Does someone have to be hurt for an attempted second-degree murder conviction?

No, someone may be convicted of attempted second-degree murder even if their actions did not lead to the injury of another person. An example includes intentionally shooting near someone  while in a fit of rage in an effort to scare them – and the bullet nearly strikes them. In this case, an attempted second-degree murder may occur if the elements are all proven.

#8 – How can someone attempt murder without intending to actually kill someone?

This is an age-old question that has been frequently asked in legal challenges to Florida’s attempted second-degree murder law. As previously noted, the statute does not actually require someone to have intended to bring about the death of a victim to be convicted of attempted second-degree murder.

The legality of Florida’s second-degree murder law has been upheld by the Florida Supreme Court in the face of legal challenges. Brown v. State, 790 So.2d 389 (Fla. 1999). The Brown majority reasoned that if a depraved mind act brought about the death of a victim, it would be considered second-degree murder even if the act was not intended to kill. Thus, the law could stand.

The dissent in Brown noted that attempt by definition requires movement towards completion of the underlying offense. The dissenters argued that attempted second-degree murder cannot be a crime because it is not possible to develop intent to commit an unintentional murder. However, attempted second degree murder remains part of Florida law for now.

#9 – What are the defenses to attempted second-degree murder?

There are many defenses available if someone is charged with attempted second-degree murder, one or more of which may be available in any given case. These may include:

• Stand Your Ground: Florida law permits the use or threatened use of force (including deadly force) if it is a reasonable and proportional act in self-defense, defense of others, or done to prevent the commission of a forcible felony. If the defendant was not the aggressor and was not engaged in criminal activity when the force was used, Stand Your Ground may be a viable defense.
• Lack of depraved mind
• Lack of intent (e.g. accidentally firing a gun)
• Lack of imminent danger to another (e.g. firing directly in the air or similar acts may be legally insufficient to support a finding of imminent danger)
• Alibi or mistaken identity  (if no evidence definitively ties the defendant to the act)
• Procedural defenses (e.g. motions to suppress unlawfully obtained evidence, motions to suppress post-arrest statements)
• Insanity defense: This is rarely applicable, but available under Fla. Stat. 775.027. The defense must prove 1) the defendant was suffering from some kind of mental illness, disease, infirmity or defect and 2) due to this condition, the defendant either did not know what they were doing or the consequences involved, or did know what they were doing but could not understand their actions were wrong

In sum, attempted second-degree murder is a very serious crime in Florida. By understanding the answer to these questions, someone will be much better informed if they or a loved one are ever connected to a case involving attempted second-degree murder charges. If this occurs, it is vital to seek our legal representation immediately.

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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