Major FL Court: Shooting Into Crowd & Killing Someone May Not Be Murder

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

Case Summary

Florida’s 3rd District Court of Appeal reversed a defendant’s conviction for second-degree murder after he shot indiscriminately into a crowd surrounding his friend. 

• CASE: Sarduy v. State, 540 So.2d 203 (Fla. 3d DCA 1989) 
• Charge(s): Second-Degree Murder
• Outcome: Conviction REVERSED, as there was no evidence in the record that the defendant acted with a “depraved mind.”

Second-Degree Murder in Florida

In Florida, second-degree murder and attempted second-degree murder are very 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 considered a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine.

However, the following penalties apply if a firearm was involved (Fla. Stat. 775.087):

• If the firearm was carried or brandished but not discharged, a mandatory minimum of 10 years in prison.
• If the firearm was discharged (shot) but no victim was struck by the discharge (bullet), a mandatory minimum sentence of 20 years in prison.
• If the firearm was discharged and a victim was injured, a mandatory minimum sentence of 25 years to life in prison. (To learn more about Florida’s 10-20-Life law, click here.)

Notably, Florida’s attempted second-degree murder law has come under serious scrutiny from legal advocates, who claim it is illogical and potentially unconstitutional. However, the Florida Supreme Court has affirmed the existence of the crime. For more, click here.

You may see as you read the elements of second-degree murder and attempted second-degree murder that both require the defendant to have acted with a “depraved mind.” to be guilty.

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

Neither law requires the State to prove the defendant intended to kill the victim(s) to be guilty. Even if someone dies, second-degree murder only requires the victim’s demise to have been the product of the defendant’s “depraved mind” act that was imminently dangerous to human life (it does not have to be a deliberate killing).

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))

Note: Florida’s courts have historically been reluctant to find second-degree murder rather than manslaughter in cases where the defendant had no preexisting relationship with (or animosity towards) the victim. However, preexisting animosity is not a requirement for someone to be guilty of second-degree murder. Porter v. State, 384 So.3d 839 (Fla. 1st DCA 2024)

In the event someone is convicted of second-degree murder or attempted second-degree murder they may appeal the verdict to the District Court of Appeal that has jurisdiction over the trial court. The DCA will typically do one of three things:

• Affirm the defendant’s conviction(s)
• Reduce the conviction(s) to manslaughter or attempted manslaughter by act (lesser felony offenses) if the evidence supports the defendant’s argument that they acted in the “heat of passion” rather than with a “depraved mind” 
• Reverse the defendant’s conviction(s), and either remand for a new trial (if a procedural error was responsible for the verdict) or toss out the verdict and release the defendant from custody (rarer, especially after the jury’s verdict has been rendered)

In one second-degree murder case heard by Florida’s 3rd District Court of Appeal, a defendant was convicted after shooting into a crowd randomly and striking the victim, killing him.

While instructing the jury on the law at the conclusion of trial, the judge in the defendant’s case informed the jury that shooting into a crowd was automatically second-degree murder “when a person is killed as a result.” The jury deliberated and found the defendant guilty.

Hearing the defendant’s appeal, the 3rd DCA reversed his conviction and remanded the matter for a new trial – finding the judge misstated the law. Let’s look at that case – Sarduy v. State, 540 So.2d 203 (Fla. 3d DCA 1989) – and discuss what it means for defendants in Florida charged with second-degree and/or attempted second-degree murder.

KEY CASE: Sarduy v. State, 540 So.2d 203 (Fla. 3d DCA 1989) 

In Sarduy, the defendant (Sarduy) was convicted of second-degree murder. He appealed to the 3rd DCA, arguing the trial judge reversibly erred while instructing the jury on the law.

At trial, it was revealed that Sarduy, his wife, and two friends met at a bar. One of his friends was involved in a brawl – he was dragged out of the bar into the parking lot and beaten. According to the 3rd DCA:

“Sarduy, upon hearing someone yell, “Go get the gun,” retrieved a gun from his car. Sarduy then shot in the direction of the melee; one shot hit and killed Gabriel Duarte. Sarduy testified that he had fired in his and his friend’s defense.”

At the conclusion of trial, the judge instructed the jury on second-degree murder (e.g. what they were required to find for Sarduy to be guilty), and said the following:

“The trial court instructed the jury on second degree murder, manslaughter, and excusable homicide. Over defense objection, the trial court also instructed the jury that “[e]ven though a defendant had no intent to hit or kill anyone, firing a gun into a crowd of people constitutes second degree murder when a person is killed as a result.””

On appeal, Sarduy argued that the trial judge effectively “directed the verdict” for the State (e.g. mandated a guilty finding) by signaling to the jury that they should disregard any claim Sarduy made as to lawful defense of others. 

Because the jury’s only concern was determining if Sarduy fired into the crowd (after the judge’s comment), Sarduy argued the trial judge’s misstatement of the law was responsible for the jury finding him guilty – requiring reversal of his conviction and a new trial.

The 3rd DCA agreed and reversed Sarduy’s conviction for second-degree murder, remanding the matter to the lower court for a new trial. The 3rd DCA wrote:

“The instruction on shooting into a crowd was tantamount to a directed verdict of guilty and requires a reversal of the conviction for second degree murder. Directing a verdict against a criminal defendant is clear error. A trial court … has no power to direct a verdict of guilty. An instruction deciding a material fact issue as a matter of law adversely to the accused is regarded as a partial instructed verdict of guilty prohibited by the rule just stated. …”

“In formulating the instruction on shooting into a crowd, the trial court erroneously relied upon Pressley v. State, 395 So.2d 1175 (Fla. 3d DCA), rev. denied, 407 So.2d 1105 (Fla. 1981). In Pressley, this court held that a defendant who, without justification, had shot into a crowd of people and killed a man was not entitled to a reduction of his second degree murder charge to manslaughter. Although the opinion stated that “[e]ven though a defendant has no intent to hit or kill anyone, firing a gun into a crowd of people constitutes second degree murder when a person is killed as a result,” 395 So.2d at 1177, in no way does Pressley suggest that it is proper to so instruct a jury which is charged with determining whether a defendant has committed second degree murder, manslaughter, or excusable homicide. Passages from appellate opinions, taken out of context, do not always make for good jury instructions. … Reversed and remanded for a new trial.”

In sum, Sarduy v. State, 540 So.2d 203 (Fla. 3d DCA 1989) marks a major development in case law on the issues of second-degree murder and erroneous jury instructions in Florida. The 3rd DCA (Miami’s highest court) found that:

• The trial judge was incorrect when he told the jury that firing indiscriminately into a crowd and killing someone was automatically second-degree murder
• The jury relied upon this misrepresentation of the law in finding Sarduy guilty
• Because the verdict was contaminated by the trial judge’s erroneous instruction, a new trial was required

Florida’s criminal defense community should take note of Sarduy v. State, 540 So.2d 203 (Fla. 3d DCA 1989), as it makes clear trial judges must be very careful about how jury instructions are given in second-degree and attempted second-degree murder cases (especially when lawful self-defense or defense of others is claimed).

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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