Major FL Court: Boyfriend Committed 2nd Degree Murder of Girlfriend’s Ex-Husband

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

Case Summary

Florida’s 3rd District Court of Appeal found the defendant, the current boyfriend of the victim’s ex-husband, killed the victim out of “ill will, spite, hatred, or evil intent.”

• CASE: Soberon v. State, 545 So.2d 490 (Fla. 3d DCA 1989)
• Charge(s): Second-Degree Murder
• Outcome: Conviction affirmed, as the boyfriend of the victim shot the victim’s husband out of “ill will, spite, hatred, or evil intent” (depraved mind).

Second-Degree Murder Charges in Florida

In Florida, second-degree murder and attempted second-degree murder are extremely serious felony offenses. For someone to be guilty of second-degree murder (Fla. Stat. 782.04(2), 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 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 someone is guilty of attempted second-degree murder with a firearm – and the victim was injured (but not killed) – Florida’s 10-20-Life law allows for a sentence of up to life in prison. To learn more, click here.

Note: Florida’s attempted second-degree murder law has come under serious scrutiny from legal advocates in the state, who argue the law is “nonsensical” and potentially unconstitutional. To learn more, click here.

You may notice as you examine elements of second-degree murder and attempted second-degree murder that they have one in common – the underlying act evinced a “depraved mind.” This has a formal legal definition. 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
• It is of such a nature that the act itself indicates an indifference to human life

You may also have identified that there is no element of second-degree murder or attempted second-degree murder that requires proof the defendant intended to kill the victim. This is because neither offense requires the State to prove an intentional killing – only a “depraved mind” act that satisfies the remaining elements. For more, click here.

In some second-degree murder and attempted second-degree murder cases, the defendant will attempt to reduce the charges to manslaughter or attempted manslaughter by act, respectively. They will argue that they did not act with a “depraved mind” (e.g. ill will, spite, hatred, evil intent) – but instead acted in the “heat of passion.”

Florida courts have been consistent that if someone has an impulsive emotional overreaction to a provocation, resulting in the victim’s death, this constitutes manslaughter (not second-degree murder). Examples of manslaughter include:

• A defendant stabs a bouncer during a bar fight after the bouncer punched his brother in the face, with no prior interaction ever occurring between the two men (Poole v. State, 30 So.3d 696 (Fla. 2d DCA 2010))
• A defendant stabs wildly at people during a crowd crush while he is choking immediately after being involved in a fight, killing someone he did not know (Bellamy v. State, 977 So.2d 682 (Fla. 2d DCA 2008))

Courts in Florida generally hold that if a defendant had no preexisting relationship with a victim (e.g. had no real time to develop the animus that typically accompanies a “depraved mind”), it’s harder for the State to prove second-degree murder rather than manslaughter. But a preexisting relationship between a defendant and victim is not an absolute requirement. For more, click here.

Sometimes, a defendant will move for a judgment of acquittal at trial on second-degree murder or attempted second-degree murder charges. A motion for a judgment of acquittal is a chance for the trial judge to dismiss the charge(s) against a defendant as a matter of law – finding the State’s evidence is legally insufficient to support a guilty verdict in the case.

In the event that a defendant in a second-degree murder or attempted second-degree murder case moves for a judgment of acquittal (MJOA), the trial judge has a few options:

• Deny the motion(s) outright, allowing the charge(s) to go to the jury
• Partially grant the motion(s), reducing the charge(s) to manslaughter and/or attempted manslaughter by act (e.g. if the defendant had an impulsive and emotional overreaction that led to the victim’s death in the “heat of passion”)
• Grant the motion(s) outright, dismissing the charges entirely (e.g. if a defendant shows they acted lawfully pursuant to Florida’s Stand Your Ground law)

In many cases, a judge will outright deny a defendant’s MJOA request, and the defendant will be convicted of the offense after the jury finds they acted with a “depraved mind” (a key element). If and when this occurs, the defendant may appeal their conviction – arguing the judge should have granted their MJOA due to a dearth of evidence they acted with a “depraved mind.”

Though Florida’s District Courts of Appeal have reversed second-degree murder or attempted second-degree murder convictions under such circumstances, they will sometimes affirm the jury’s verdict, finding sufficient evidence in the record that the defendant was acting with a “depraved mind” when their intentional act caused the death of the victim.

One such case was decided by Florida’s 3rd District Court of Appeal (Miami’s highest court): Soberon v. State, 545 So.2d 490 (Fla. 3d DCA 1989). Let’s take a look at Soberon and discuss what it means for defendants charged with murder or manslaughter in Florida.

KEY CASE: Soberon v. State, 545 So.2d 490 (Fla. 3d DCA 1989)

In Soberon, the defendant (Soberon) was charged with and convicted of second-degree murder of his girlfriend’s ex-husband. He appealed to the 3rd DCA, arguing the evidence in the record was insufficient as a matter of law to support a guilty verdict.

At trial, it was revealed that the victim was jealous of the defendant. The victim was taller than the defendant and outweighed him by approximately 30 pounds. According to the 3rd DCA, the following occurred:

“On the day of the shooting, appellant went to the ex-wife’s home to take her and her daughter to the beach. When he arrived, the ex-wife and the deceased were speaking with each other on the sidewalk in front of the ex-wife’s house. Appellant observed from his car, about thirty feet away, as the two quarreled. The deceased grabbed the ex-wife’s arm and twisted it. Appellant took out his pistol and emerged from the car, intending to threaten the deceased. The deceased was unarmed, and either walked or ran toward appellant.1 When the deceased was eight to twelve feet from appellant, appellant shot four times, inflicting fatal wounds.”

After evaluating the “totality of the circumstances” surrounding the fatal shooting, the 3rd DCA affirmed the guilty verdict of second-degree murder returned by the jury in Soberon’s case. As to the denial of Soberon’s motion for a judgment of acquittal (which argued he was acting in lawful self-defense), the 3rd DCA wrote:

“We are not entitled to reweigh sufficient evidence…. The jury was entitled to conclude that the defense of self-defense was not applicable. “[A] person under attack [has] to ‘retreat to the wall or ditch’ before taking a life.” … The “one interposing the defense … must have used all reasonable means in his power, consistent with his own safety, to avoid the danger and to avert the necessity of taking human life….” Linsley v. State, 88 Fla. 135, 101 So. 273 (1924). Baker v. State, 506 So.2d 1056, 1058 (Fla. 2d DCA), review denied, 515 So.2d 229 (Fla.1987). Moreover, “a defendant must demonstrate that the situation would induce a reasonably prudent person to believe both that danger was imminent and that there was a real necessity for the taking of a life.” Pressley v. State, 395 So.2d at 1177 (citation omitted). On this record the trial court correctly denied the motion for judgment of acquittal and properly submitted the issue to the jury.”

In essence, the 3rd DCA declined to reverse the judge’s denial of the MJOA, because application of the case law to the facts led to the conclusion that Soberon was not acting in self-defense (e.g. his use of deadly force was unreasonable and disproportionate).

Turning to Soberon’s argument that the evidence in the record only supported a finding that he committed manslaughter (a less serious second-degree felony, punishable by up to 15 years in prison), the 3rd DCA found the jury reasonably concluded that Soberon acted with a “depraved mind” (second-degree murder):

“Appellant also contends that the evidence was legally insufficient to show “a depraved mind regardless of human life,” § 782.04(2), Fla.Stat. (1987), an essential element of the charge of second-degree murder. Here, the appellant shot an unarmed man four times in the circumstances outlined above. The reported decisions have held the evidence sufficient to submit to the jury on comparable, though not identical, facts. See Turner v. State, 298 So.2d 559, 560 (Fla. 3d DCA 1974); Hines v. State, 227 So.2d 334, 335–36 (Fla. 1st DCA 1969); cf. Pressley v. State, 395 So.2d at 1177 (“firing a loaded gun toward a group of people is reasonably certain to kill or do serious bodily injury … [and] … indicated an indifference to life and demonstrated ill will”; second degree murder established when person is killed as a result, even though defendant did not intend to kill). The evidence was properly submitted to the jury as second degree murder, as well as the lesser included offense of manslaughter.”

In sum, Soberon v. State, 545 So.2d 490 (Fla. 3d DCA 1989) marks a significant development in Florida’s corpus of case law on the issues of second-degree murder, attempted second-degree murder, manslaughter, and “depraved mind” acts. The 3rd DCA held that:

• Soberon shot an unarmed man four times, killing him, when he was not an imminent threat of death or serious bodily injury
• Given the circumstances (e.g. prior animosity between victim and defendant), it appears Soberon acted with “ill will, spite, hatred, and evil intent” – rather than firing his gun in the “heat of passion”
• As the jury reasonably concluded Soberon acted with a “depraved mind” when he killed the victim, his second-degree murder conviction was affirmed 

Florida’s criminal defense community should take note of Soberon v. State, 545 So.2d 490 (Fla. 3d DCA 1989), as it makes clear how Florida courts analyze second-degree murder convictions when the issue is whether the defendant acted in the “heat of passion” or with 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 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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