North FL’s Highest Court: Pointing Gun at Victim’s Stomach and Firing Was Attempted 2nd Degree Murder

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

Case Summary

Florida’s 1st District Court of Appeal ruled a defendant was guilty of attempted second-degree murder after he pointed it at the victim’s stomach and made a remark that he “should have killed him” after shooting him.

CASE: Perez v. State, 187 So.3d 1279 (Fla. 1st DCA 2016)

Charge(s): Attempted Second-Degree Murder

Outcome: Conviction AFFIRMED, as the defendant deliberately pointed the gun at the victim’s stomach and shot him, before making a remark that he “should have killed him.”

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 (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 person (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. For more, click here.

Note: Florida’s attempted second-degree murder law has come under scrutiny from many legal advocates, who argue it is illogical and potentially unconstitutional. To learn more about this, click here.

You may notice that a common element of second-degree murder and attempted second-degree murder is that the defendant acted with a “depraved mind” in committing the unlawful act. 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

Courts have generally found that a “depraved mind” takes more than an instant to develop, and that there is usually preexisting animosity between the defendant and the alleged victim in cases involving alleged second-degree murder or attempted second-degree murder. Wiley v. State, 60 So.3d 588 (Fla. 4th DCA 2011)

However, Florida’s 1st District Court of Appeal (Tallahassee and North Florida’s highest court) recently clarified that a relationship between the victim and defendant that precedes the incident is not a requirement for a depraved mind to be proven. Porter v. State, 384 So.3d 839 (Fla. 1st DCA 2024)  For more, click here.

If someone is charged with second-degree murder or attempted second-degree murder in Florida, they may challenge the argument that they acted with a “depraved mind.” They may claim that an “impulsive overreaction” led to their conduct, which is considered manslaughter or attempted manslaughter, not murder/attempted murder. Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011)

In the event that a defendant moves in the form of a pretrial motion to dismiss (or a motion for a judgment of acquittal at trial) to toss out the charge(s) or reduce to manslaughter or attempted manslaughter (second- and third-degree felonies, respectively), the trial judge has three options:

• Deny the motion to dismiss/for a judgment of acquittal outright, leaving second-degree or attempted second-degree murder charges in place
• Partially grant the motion(s), leading to the reduction of the charge to manslaughter or attempted manslaughter by act (e.g. if the evidence shows the defendant was impulsively overreacting in the “heat of passion,” not acting with a depraved mind)
• Grant the motion(s) outright, leading to the charges being dismissed entirely (e.g. if it is clear that the defendant was acting in lawful self-defense, defense of others or to prevent commission of a forcible felony under Florida’s Stand Your Ground law)

If a trial judge leaves the charges undisturbed (e.g. outright denies the motion(s)) and a defendant is convicted, they may appeal to one of Florida’s higher courts (DCAs) and argue the evidence in the record was insufficient as a matter of law to support a finding of a “depraved mind” (required if charged with second-degree/attempted second-degree murder). 

One such case was heard by Florida’s 1st DCA in 2016. There, the defendant was charged with and convicted of attempted second-degree murder for shooting his former friend in response to a challenge to a fist fight.

On appeal, the defendant argued that the evidence introduced by the State at trial was insufficient to establish he acted with a “depraved mind.”. But the 1st DCA rejected this claim, affirming the defendant’s conviction for attempted second-degree murder.

Let’s find out why by looking at that case – Perez v. State, 187 So.3d 1279 (Fla. 1st DCA 2016) – and discussing what it means for those charged with second-degree or attempted second-degree murder in Florida.

KEY CASE: Perez v. State, 187 So.3d 1279 (Fla. 1st DCA 2016)

In Perez, the defendant (Perez) was convicted of attempted second-degree murder of his former friend. He appealed to the 1st DCA.

At trial, it was revealed that Perez and his former friend, Coley, lived in the same neighborhood. Coley and a friend were walking on the street the night of the shooting – when suddenly, Perez approached them from behind on a bicycle.

Coley and Perez exchanged words and ended up arguing face-to-face. No punches were thrown and neither man shoved or kicked the other. At some point, however, Coley challenged Perez to a physical fight. Coley testified that he asked Perez for a “fair fight” to settle their differences. 

Perez said he “wasn’t taking no losses,” and as Coley started towards him in preparation to fight, Perez pulled out his gun and put it in Coley’s face. A surprised and angry Coley pushed the gun away and continued towards Perez, asking Perez why he would pull a gun on him. Immediately after this, the following occurred:

“From an arm’s length away, Appellant put the gun on Coley’s stomach, and it “went off.” Coley called Appellant’s name and said, “[Y]ou shot me.” Appellant answered, “I know. I should have killed you.” As Coley’s friend scrambled away from the scene, Appellant pointed the gun at him. The friend hid behind an electrical box, and both Coley and the friend heard a couple more gunshots shortly after the first one. Appellant then left on his bicycle. Appellant’s bullet entered Coley’s abdomen, struck an artery, pierced his lung, and lodged in his spine. Coley was temporarily paralyzed, later suffered serious complications from blood clots, and remained under a doctor’s care at the time of trial, approximately seven months after the incident.”

After he was convicted of attempted second-degree murder at trial and the judge outright denied his motion for a judgment of acquittal, Perez appealed to the 1st DCA, arguing that his attempted second-degree murder charge should have been reduced to attempted manslaughter by act as a matter of law. 

Perez claimed he had an “impulsive overreaction,” negating the “depraved mind” mens rea that was required for the State to prove him guilty of attempted second-degree murder. However, the 1st DCA rejected Perez’s argument and affirmed his conviction. The 1st DCA held:

“Under these facts, we find no error in the denial of Appellant’s motion for judgment of acquittal, which focused on the intent element of attempted second-degree murder. A trial court’s denial of a motion for judgment of acquittal is reviewed de novo. Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). If the evidence, when considered in the light most favorable to the State, is capable of supporting a guilty verdict, a motion for judgment of acquittal must be denied. See id. at 1197–98. To grant a motion for judgment of acquittal, the trial court must find that the evidence is legally insufficient to support the elements of the crime. Id. at 1197. Accordingly, the appropriate inquiry on appeal is whether there is competent, substantial evidence to support the elements of the crime and, thereby, support the trial court’s denial of the motion.”

In essence, the 1st DCA found that the evidence in the record was not legally “insufficient” to support a guilty verdict in Perez’s case. Thus, the trial judge did not err by denying his motion for a judgment of acquittal (MJOA). Continuing its analysis, the 1st DCA wrote: 

“Appellant argues that the shooting was merely an impulsive overreaction to Coley’s invitation and approach to fight. Appellant relies on four cases for support: Poole v. State, 30 So.3d 696 (Fla. 2d DCA 2010); Bellamy v. State, 977 So.2d 682, 684 (Fla. 2d DCA 2008); Rayl v. State, 765 So.2d 917, 919–20 (Fla. 2d DCA 2000); and McDaniel v. State, 620 So.2d 1308 (Fla. 4th DCA 1993). In these cases, the courts concluded that the State’s evidence was insufficient to establish the intent element of second-degree murder (or attempted second-degree murder), where the defendants reacted to either an attack or a perceived imminent attack or were engaged in mutual physical fighting with the victims.”

“In contrast, although the evidence in the instant case showed that Coley challenged Appellant to a fight and actually advanced toward him, it does not necessarily establish that when Appellant shot Coley he was “impulsively acting out of fear to save himself.”… While the evidence showed that the shooting was a response, and indeed an overreaction, to Coley’s challenge to a fight, the witnesses’ testimony provided a basis from which the jury could find that Appellant’s reaction was more deliberate than impulsive. … Further, Appellant’s statement to Coley that he “should have killed” him distinguishes the instant case from the “impulsive overreaction” cases and suggests malice. From this contemporaneous statement and all the circumstances, the jury could reasonably find that Appellant shot the victim out of ill will, hatred, spite, or evil intent and that he had no regard for the victim’s life. Accordingly, Appellant’s conviction for attempted second-degree murder is AFFIRMED.”

Put simply, because Perez’s conduct was more “deliberate than impulsive” (as evidenced by his comment that he “should have killed” Coley), the 1st DCA found that Perez indeed acted with a depraved mind. As a result, his attempted second-degree conviction was affirmed.

In sum, Perez v. State, 187 So.3d 1279 (Fla. 1st DCA 2016) marks a significant development in Florida’s corpus of case law on second-degree murder, attempted second-degree murder, and acting with a “depraved mind.” The 1st DCA (North FL’s highest court) found that:

• Perez pulling his gun and firing it into Coley’s stomach was more “deliberate” than an “impulsive overreaction” to being challenged to a fight
• Perez’s comments after the fact indicated that he did indeed have “ill will, spite, hatred, or evil intent” towards his target (Coley)
• This indicated he acted with a depraved mind rather than in the “heat of passion” – so his attempted second-degree murder conviction was affirmed

Florida’s criminal defense community should take note of Perez v. State, 187 So.3d 1279 (Fla. 1st DCA 2016), as it makes clear that conduct both before and after a defendant commits an alleged “depraved mind act” can be used to support second-degree or attempted-second degree murder charges.

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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