Major FL Court Reverses Murder Conviction, Discusses Elements of Murder Vs. Manslaughter

January 14, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 4th District Court of Appeal reversed a defendant’s conviction for second-degree murder, finding that he did have a “depraved mind” necessary to be guilty of the act when it occurred. 

In Florida, second-degree murder and attempted second-degree murder are very serious felony offenses.

For someone to be guilty of second-degree murder, 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

Second-degree murder is usually considered a first-degree felony, punishable by up to 30 years in prison. However, if someone qualifies for PRR, HFO or another sentencing enhancement in Florida – or uses a firearm to commit the offense – second-degree murder is punishable by up to life in prison. For more on this, click here.

Attempted second-degree murder occurs when someone commits an act that was imminently dangerous to a victim and would have been second-degree murder if the victim had died, but they did not.

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

Note: Mere preparation occurs when someone is in the “planning” phases of the crime (devising the means or measures necessary to commit it). An overt act does not have to be the last possible act before completing a crime, but requires actual movement towards commission of the offense. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018)

Attempted second-degree murder is a second-degree felony, punishable by up to fifteen years in prison and a $10,000 fine. However, significantly more serious sentences can result if someone used a firearm to commit the offense and is charged under Florida’s 10-20-Life law. For more, click here.

Florida’s attempted second-degree murder law has been the subject of legal controversy for many years, as advocates have argued that someone cannot attempt murder without actually intending to kill a victim. For more on this, click here.

As you read the elements of these offenses, you may notice that both second-degree murder and attempted second-degree murder require the State to prove the defendant had a “depraved mind” at the time they committed the allegedly unlawful act.

Per Holmes v. State, 278 So. 3d 301 (Fla. 1st DCA 2019), an act is done with a “depraved mind” when all of the following are true:

• 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

This is the key difference between second-degree murder (and attempted second-degree murder) and manslaughter (and attempted manslaughter). The presence of a depraved mind, even if the act was not specifically intended to kill a victim (premeditated), allows second-degree murder charges for an act that would typically be classified as manslaughter.

Note: To learn more about the differences between murder and manslaughter under Florida law, click here.

Occasionally, someone may be charged with second-degree murder or attempted second-degree murder when the appropriate charge would be manslaughter or attempted manslaughter. This is a frequent issue on appeal of second-degree murder convictions – with many defendants arguing that as a matter of law, the State failed to prove they acted with a “depraved mind.”

But have Florida’s appellate courts reversed second-degree and attempted second-degree murder convictions in such cases on the grounds that there was insufficient evidence that the defendant was acting with a depraved mind? The answer is – yes.

Let’s take a look at one of those cases – Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011) – and what it means for those charged with (or convicted of) second-degree murder or attempted second-degree murder in Florida.

KEY CASE: Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011)

In Dorsey, the defendant (Dorsey) was convicted of two counts of second-degree murder and one count of possession of a firearm by a convicted felon.

Dorsey was accused of second-degree murder of two victims, Bo Bunting and John Lott. At trial, it was revealed that Dorsey attended a “keg” party where most of those present were high school students or recently finished high school.

While Dorsey was there, Bunting and Lott approached him near his vehicle. Lott was frustrated someone bumped into him earlier, and an argument ensued, resulting in Bunting, Lott and others surrounding Dorsey in a semicircle. 

Lott and Dorsey’s argument grew quite heated. Bunting encouraged them to fight – asking Lott if he would “just let” Dorsey talk to him in such a disrespectful manner. Lott then punched Dorsey in the face. Dorsey pulled out a gun moments later – shooting both Bunting and Lott. Both died.

At trial, Dorsey moved for a judgment of acquittal (MJOA) of second-degree murder, arguing the State had not proven he acted with a depraved mind. Dorsey argued that the evidence showed he had an “impulsive overreaction” when he was attacked – fitting the “heat of passion” mens rea commonly associated with manslaughter (not murder) charges.

However, the trial judge denied the MJOA request, and Dorsey was convicted. On appeal to the 4th DCA, Dorsey reiterated his argument that the evidence in the record did not support a finding that he acted with a depraved mind as a matter of law.

Florida’s 4th District Court of Appeal (Southeast Florida) agreed, reversing Dorsey’s convictions and remanding the matter to the lower court for a new trial. The 4th DCA first discussed the law surrounding second-degree murder’s “depraved mind” requirement, writing:

“An act is imminently dangerous to another and evinces a “depraved mind” if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life … Florida courts have held that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. … 

“Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim.” Light, 841 So.2d at 626. Moreover, “[h]atred, spite, evil intent, or ill will usually require more than an instant to develop.” Id.  While the jury may reasonably reject the theory of self-defense in a case involving a defendant’s impulsive overreaction to a victim’s attack, such a case warrants a conviction for manslaughter, not second degree murder.”

Turning to the facts of the case, the 4th DCA concluded that the evidence in Dorsey’s case could not sustain a second-degree murder conviction (on either count):

“In the present case, the evidence in the light most favorable to the State is insufficient to sustain the defendant’s convictions for second degree murder. Here, it was uncontested at trial that the defendant had his back against his vehicle when he was confronted by multiple men, including the victims, Lott and Bunting. The victims had both been drinking and Lott, in particular, was heavily intoxicated. After the defendant and Lott exchanged words, Lott punched the defendant in the face, with Bunting’s encouragement, causing the defendant to fall back against his vehicle.”

“Although a jury could reasonably find that the defendant’s use of a gun was excessive, thereby negating a finding of self-defense, no evidence was presented that the defendant acted out of ill will, hatred, spite, or an evil intent. Furthermore, we reject the State’s argument that the defendant’s demeanor before the confrontation was sufficient to prove beyond a reasonable doubt that he acted with a depraved mind. The defendant’s use of deadly force occurred only after he was attacked, and the State has pointed to no record evidence that the defendant had any previous grudge against these victims or any ongoing disputes between them.”

Essentially, since Dorsey “overreacted” during a drunken confrontation and did not seem to have any animus towards the victims that preceded the shooting, the evidence did not prove he acted with “ill will, spite, hatred or evil intent.” As a result, his second-degree murder convictions were reversed.

In sum, Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011) is a significant development in Florida case law surrounding the “depraved mind” requirement in second-degree murder and attempted second-degree murder prosecutions. The 4th DCA found:

• Dorsey had an emotional overreaction to getting punched during a confrontation at a party, which resulted in him fatally shooting the two victims
• There was no evidence Dorsey previously knew the victims, and he only shot them after he was punched 
• Because the evidence showed Dorsey did not have a “depraved mind” (“ill will, spite, hatred or evil intent”) when he fired the fatal shots, his second-degree murder convictions were reversed as a matter of law 

Florida’s criminal defense community should take note of Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011), as it places a heavy burden on the State to provide clear evidence the defendant acted with a depraved mind. Otherwise, a second-degree murder (or attempted second-degree murder) conviction must be reversed as a matter of law.

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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