Major FL Court Finds Man Who Defensively Struck Someone With Stick Not Guilty of Second-Degree Murder

February 9, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 3rd District Court of Appeal reversed a man’s second-degree murder conviction, as he did not act with a ‘depraved mind’ when he struck the victim with a stick in self-defense, causing bleeding that led to the victim’s death.

In Florida, second-degree murder and attempted second-degree murder are very serious offenses. Second-degree murder is a first-degree felony, punishable by up to life in prison (with a potential mandatory minimum of life in prison if a firearm is used under Florida’s 10-20-Life law).

For someone to be guilty of second-degree murder in Florida, the State must prove all of the following elements beyond a reasonable doubt:

• 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

Notably, second-degree murder does not require that someone have intended to kill the victim. If a “depraved mind” act that is imminently dangerous to human life resulted in the victim’s death, a person is guilty of second-degree murder. Porter v. State, 384 So.3d 839 (Fla. 1st DCA 2024) 

For someone to be guilty of attempted second-degree murder, the State must establish all of the following 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”

Like second-degree murder, attempted second-degree murder also does not require an intent to kill the victim. Because of its breadth, Florida’s attempted second-degree murder law has been the subject of copious legal controversy – which you can read about here.

Attempted second-degree murder is a second-degree felony, ordinarily punishable by up to 15 years in prison and a $10,000 fine. However, if a firearm is used, it is punishable by up to life in prison as a first-degree felony under Florida’s 10-20-Life law (Fla. Stat. 775.087). For more on this, click here.

One of the key elements of second-degree murder and attempted second-degree murder is proof beyond a reasonable doubt that the defendant acted with 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
• It is of such a nature that the act itself indicates an indifference to human life

Florida’s courts have held that someone does not have to have a preexisting relationship with the victim to have acted with “ill will, hatred, spite, or evil intent.” However, courts have been clear that a “depraved mind” typically takes longer than an “instant” to develop. Wiley v. State, 60 So.3d 588 (Fla. 4th DCA 2011)

If someone acted in lawful self-defense (or defense of others), Florida law makes clear that they cannot be said to have acted with a depraved mind. In fact, if someone acts in lawful self-defense this entitles someone to claim immunity from civil or criminal liability under Florida’s Stand Your Ground law. To learn more, click here.

If someone is reasonably placed in fear for their life or serious bodily injury, their use of force (including deadly force) is permissible in Florida. Derossett v. State, 311 So.3d 880 (Fla. 5th DCA 2019) 

Though state law provides someone legal immunity if they use or threaten force under such circumstances, the State may sometimes “get it wrong” and charge someone with second-degree murder or attempted second-degree murder – even if their use of force was defensive in nature.

One such case is Harper v. State, 411 So.2d 235 (Fla. 3d. DCA 1982). There, the defendant was charged with and convicted of second-degree murder despite using force defensively against a potential attacker. 

However, Florida’s 3rd District Court of Appeal (Miami area) reversed the jury’s guilty verdict and released the defendant from custody. Let’s take a look at Harper v. State, 411 So.2d 235 (Fla. 3d. DCA 1982) and what it means for those charged with second-degree murder or attempted second-degree murder in Florida.

KEY CASE: Harper v. State, 411 So.2d 235 (Fla. 3d. DCA 1982)

In Harper, the defendant (Harper) was charged with second-degree murder after an encounter outside a convenience store with two potential attackers. He was convicted and appealed to the 3rd DCA.

At trial, it was revealed that Harper was shopping when a man (Courtney) approached him and asked Harper to purchase him alcohol. Harper refused, and Courtney indicated to Harper that he would see him soon and “blow him up.”

When Harper went to leave the store, he was approached by Courtney and Courtney’s associate, Smith. Smith was holding a stick that was approximately the size of a ‘table or chair” leg. After a brief argument, Smith raised the stick above his head as if to swing it at Harper.

Before Smith could successfully do so, Harper grabbed the stick from Smith and struck him in the head with it. Smith did not appear to be seriously injured, and the two men retreated. The following day, however, Smith (who was in poor health due to frequent alcohol use and chronic disease) died.

Harper was blamed for Smith’s demise – and he was arrested and charged with second-degree murder. At trial, he moved for a judgment of acquittal, arguing that the evidence was insufficient as a matter of law for the case to proceed to jury deliberations. The trial judge denied Harper’s MJOA.

The jury convicted Harper, and he appealed to the 3rd DCA. Harper claimed that the evidence against him was insufficient as a matter of law, noting:

• There was no evidence he acted with a depraved mind (and in fact, the evidence showed he likely acted in self-defense)
• The stick hitting Smith could not be said to have definitively been the cause of Smith’s death, as the coroner’s report was inconclusive

The 3rd DCA agreed on both points and reversed Harper’s conviction. The 3rd DCA found that even if Harper caused Smith’s death, there was no evidence Harper acted with a depraved mind (and in fact, it appeared he acted in self-defense). The 3rd DCA wrote:

“Whether [Smith]’s death was due to the blow from the stick was somewhat inconclusive. The coroner testified that there was evidence of only one blow to the victim’s head, there were no open wounds or cuts and no evidence of external bleeding, and that Smith was an alcoholic with a diseased liver condition who could have died without being struck on the head, either as a result of hypertension, or high blood pressure or subdural hematoma…”

“Reiterating the pronouncement in the initial paragraph of this opinion, the evidence was legally insufficient to show that Harper acted with a depraved mind regardless of human life, an indispensable element of the crime of second degree murder. See, Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979); Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978); Raneri v. State, 255 So.2d 291 (Fla. 1st DCA 1971). Although in both the Pierce case, supra, and the Martinez case, supra, the evidence was held sufficient to create a jury issue as to whether the accused had used excessive force (thus warranting a conclusion that the evidence would at least sustain a conviction of manslaughter), we conclude that in the instant case the evidence not only failed to sufficiently rebut Harper’s claim of self defense so as to create a jury issue, but in fact essentially corroborated Harper’s position. 

“The State having failed in its burden of presenting evidence legally sufficient to contradict Harper’s explanation of self defense Harper’s version cannot be ignored, and his motion for judgment of acquittal should have been granted. … The judgment and sentence are severally reversed and this cause remanded with instructions that William Harper be discharged forthwith.”

In sum, Harper v. State, 411 So.2d 235 (Fla. 3d. DCA 1982) marks a significant development in Florida’s corpus of case law on second-degree murder and attempted second-degree murder. The 3rd DCA held that:

• There was no evidence Harper acted with a “depraved mind” (e.g. with ill will, spite, hatred, evil intent) when he swung the stick at Smith
• Even if Harper did cause Smith’s death, this appeared to be an act of self-defense after he was confronted by Courtney and Smith
• There was also insufficient evidence for a manslaughter conviction, as Harper did not even “overreact” to the threat posed (he simply hit Smith once with the stick)
• Because the evidence indicated Harper did not commit a crime at all, his conviction was reversed and he was released from custody

Florida’s criminal defense community should take note of Harper v. State, 411 So.2d 235 (Fla. 3d. DCA 1982) – as it makes clear that defendants acting in lawful self-defense or defense of others are not guilty of second-degree murder or attempted second-degree murder. 

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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