Major FL Court: Killing in ‘Heat of Passion’ is Not Second-Degree Murder

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

Florida’s 3rd District Court of Appeal ruled that a defendant’s conviction required reversal after he was convicted of second-degree murder for stabbing a man in the chest after realizing he had sexually assaulted the defendant’s wife.

In Florida, second-degree murder and attempted second-degree murder are extremely serious offenses. Second-degree murder is typically considered a first-degree felony, punishable by up to 30 years in prison and a $10,000 fine. Attempted second-degree murder is generally charged as a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine.

However, even more severe penalties apply if a firearm is used in the commission of the offense. If a firearm was used to kill the victim in a second-degree murder case, the defendant must be sentenced to a mandatory minimum of between 25 years and life in prison – pursuant to Florida’s 10-20-Life law (Fla. Stat. 775.087).

If a firearm is discharged during an attempted second-degree murder but the projectile does not strike the victim, the defendant must be sentenced to 20 years in prison under that same statute (mandatory minimum). If the discharge injured a victim, attempted second-degree murder carries a mandatory minimum sentence of 25 years to life. For more, click here.

For someone to be guilty of second-degree murder in Florida, the State must prove all of the following 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

For someone to be guilty of attempted second-degree murder, the State must establish all of the following beyond a reasonable doubt (Brown v. State, 790 So.2d 389 (Fla. 2000)): 

• 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”

Note: There has been significant legal controversy surrounding the constitutionality of Florida’s attempted second-degree murder law. To learn more, click here.

Important: Neither offense requires that the defendant specifically target a particular person for death. Second-degree murder occurs if a defendant commits an act that satisfies the elements of attempted second-degree murder, but the victim dies. For more, click here.

As you may notice, a common element of these two offenses is that the defendant must act with a “depraved mind.” This term has a formal definition under Florida law.

A person is said to have acted with a depraved mind for purposes of second-degree murder and attempted second-degree murder if all of the following were true of their actions (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

Recent cases in which Florida courts have affirmed second-degree and attempted second-degree murder convictions on the grounds that the defendant acted with a “depraved mind” include:

• Second-degree murder: A juvenile defendant shoots a rival gang member before a fight after indicating to classmates he was going to “kill someone” and that he was looking for the victim – indicating preexisting animosity between the two (Porter v. State, 384 So.3d 839 (Fla. 1st DCA 2024))
• Attempted second-degree murder: A defendant getting in a heated argument with his jealous girlfriend firing a gun in her direction after she left for the bathroom, leading to her sustaining serious injuries (Mooney v. State, 403 So.3d 407 (Fla. 1st DCA 2025))

If a defendant is accused of second-degree murder or attempted second-degree murder, they may move for a judgment of acquittal (MJOA) or move to dismiss the charges before trial on the basis that they did not act with a depraved mind. 

If such a motion succeeds, charges may be reduced to manslaughter or attempted manslaughter by act. These occur when someone kills or commits an imminently dangerous act that does not result in death – but does so out of the “heat of passion” (e.g. intense, momentary emotion) rather than with a “depraved mind.”

Sometimes, a defendant will be convicted of second-degree murder or attempted second-degree murder, as the jury will find they acted with a “depraved mind” (e.g. ill will, spite, hatred, evil intent) in killing the victim. 

However, a Florida appellate court may review the evidence and find that as a matter of law, the defendant acted out of the “heat of passion” – resulting in the defendant’s conviction being reduced to manslaughter (a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine) or attempted manslaughter (third-degree felony, punishable by up to 5 years).

In one second-degree murder case, that’s exactly what happened. Let’s take a look at Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000) – and what it means for defendants accused of second-degree murder and attempted second-degree murder in Florida.

KEY CASE: Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000) 

In Paz, the defendant Paz was charged with and convicted of second-degree murder. He appealed his conviction to Florida’s 3rd District Court of Appeal (Miami area).

The facts at trial revealed that Paz hosted a party with his wife on Christmas Eve. Various guests attended, including Paz’s sister-in-law and her husband. Later in the evening, Paz’s sister-in law went home, and Paz went upstairs to use the bathroom. This left Paz’s sister-in-law’s husband (Winton) and his wife alone downstairs.

When he returned, Paz found his wife (Esmeralda) crying. Paz asked what was going on – and Esmeralda answered that Winton had just sexually assaulted her. Paz and Esmeralda confronted Winton, and during that confrontation, an enraged Paz reached for a nearby knife and fatally stabbed Winton.

Paz moved for a judgment of acquittal (MJOA) of second-degree murder at trial, arguing that he did not act with a depraved mind. Since he’d just discovered that Winton sexually assaulted his wife, Paz claimed that he stabbed Winton in a “heat of passion” (e.g. manslaughter). According to Paz, this required reduction of the second-degree murder charge to manslaughter.

However, the trial court denied the motion – and Paz was convicted of second-degree murder. On appeal to the 3rd DCA, he reiterated his claim that he stabbed Winton in a “heat of passion,” so the jury only should have been permitted to consider a manslaughter charge (not a second-degree murder charge).

The 3rd DCA agreed – reversing Paz’s second-degree murder conviction and ordering Paz to be resentenced for manslaughter. The 3rd DCA found there was overwhelming evidence in the trial record that Paz committed manslaughter (not second-degree murder) – and thus, the trial judge erred by failing to reduce the charge:

“In order for the defense of heat of passion to be available there must be “adequate provocation … as might obscure the reason or dominate the volition of an ordinary reasonable man.” Rivers v. State, 75 Fla. 401, 78 So. 343, 345 (1918). See also LaFave & Scott, Substantive Criminal Law, § 7.10 (2d ed. 1986 & Supp.)(examples of reasonable provocation for a crime of passion). Here, the undisputed record evidence reveals a classic case of manslaughter based on adequate legal provocation: Paz killed Winton immediately upon realizing that the victim had sexually assaulted his wife. After Winton went upstairs, Paz followed shortly thereafter and found his wife in a state of undress, crying, and then heard his wife yell at the victim, “Why did you do that to me?” As a matter of law, Paz’s sudden act of stabbing the victim immediately after surmising that the victim had sexually assaulted his wife may not be deemed an act evincing a depraved mind regardless of human life, “but rather from the infirmity of passion to which even good men are subject.””

“Instead, the evidence shows a killing in the heat of passion that occurred when defendant acted in a condition of mind where “depravity which characterizes murder in the second degree [is] absent.” Disney v. State, 72 Fla. 492, 73 So. 598, 601 (1916). Therefore, the court should have reduced the charge to manslaughter. Accordingly, we reverse the second degree murder conviction, and remand the cause for entry of a judgment of conviction for manslaughter.”

In essence, the 3rd DCA concluded that because Paz’s stabbing of Winton was a sudden act that immediately followed the revelation that Winton sexually assaulted Esmeralda, this was a clear case of acting in a “heat of passion.” Thus, Paz did not have the “depraved mind” required to be guilty of second-degree murder. 

In sum, Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000) marks a significant development in Florida law on the issue of what constitutes a “depraved mind” for purposes of second-degree murder charges. The 3rd DCA found:

• Paz stabbed Winton immediately after finding out Winton sexually assaulted Paz’s wife
• This was the result of Paz acting in the “heat of passion” (out of momentary shock/fury) rather than doing so with a depraved mind (e.g. ill will, spite, evil intent)
• Because of this, Paz was not guilty of second-degree murder as a matter of law – so his conviction was reduced to manslaughter

Florida’s criminal defense community should take note of Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000), as it provides a clear, concise analysis of when MJOAs and motions to dismiss should succeed in second-degree or attempted second-degree murder cases, on the grounds that the defendant did not act 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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