North FL’s Highest Court Uses “Joke” To Support 2nd Degree Murder Conviction

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

Case Summary

In a foundational second-degree murder case, Florida’s 1st District Court of Appeal ruled that a defendant’s “joke” to the victim before fatally shooting her supported the finding that he acted with a “depraved mind.”

CASE: Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969)

Charge(s): Second-Degree Murder

Outcome: Defendant’s conviction affirmed, as a comment he made before shooting the victim indicated he was acting with a “depraved mind.”

Second-Degree Murder in Florida

In Florida, second-degree murder and attempted second-degree murder are very serious felony offenses that carry heavy criminal penalties.

For someone to be guilty of second-degree murder, the State must establish all of the following beyond a reasonable doubt (Fla. Stat. 782.04(2)):

• 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 a first-degree felony, punishable by up to 30 years in prison and a $10,000 fine. 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) and 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 been the subject of copious debate – with many advocates arguing that there is no way to “attempt” to commit a murder that does not require someone to act with specific intent to kill. For more on this, click here.

You may notice that a common element of second-degree murder and attempted second-degree murder is the defendant acting with a “depraved mind.” This has a formal legal definition under Florida law. An act done with a “depraved mind” involves all of the following (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

Florida’s courts have historically held that in second-degree murder or attempted second-degree murder cases, preexisting animosity between the victim and defendant is present. But in recent years, decisions by Florida’s 1st DCA have said this is not a requirement. Porter v. State, 384 So.3d 839 (Fla. 1st DCA 2024); Mooney v. State, 403 So.3d 407 (Fla. 1st DCA 2025) 

If someone is charged with second-degree murder or attempted second-degree murder in Florida, they may move to dismiss the charges in the form of a pretrial motion to dismiss (3.190(c)(4)). If this fails, they may move for a judgment of acquittal (MJOA) at trial, arguing the State has not proven they acted with a “depraved mind.”

Whether such a motion is granted is heavily dependent on the facts of the case. However, if a person is accused of second-degree murder or attempted second-degree murder and moves for the trial judge to dismiss the charge(s) due to the absence of a “depraved mind,” the judge can do one of three things:

• Deny the motion(s) outright, allowing the charge(s) to go to the jury
• Partially grant the motion(s), reducing the charge(s) to manslaughter and/or attempted manslaughter by act (e.g. if the defendant had an impulsive and emotional overreaction that led to the victim’s death in the “heat of passion”)
• Grant the motion(s) outright, dismissing the charges entirely (e.g. if a defendant shows they acted lawfully pursuant to Florida’s Stand Your Ground law)

In some cases, a defendant will be charged with and convicted of first-degree murder rather than second-degree murder. This occurs in cases where the State proves a defendant killed the victim with “malice aforethought” (e.g. they had time to reflect and deliberately killed the victim). For more, click here. Foster v. State, 258 So.3d 1248 (Fla. 2018)

At trial, a defendant may move (pretrial or at trial) to reduce a first-degree murder or attempted first-degree murder charge to second-degree or attempted second-degree murder. They may argue that their conduct indicated they acted with a “depraved mind” rather than with malice aforethought.

When that occurs, a trial judge may deny the pretrial motion to dismiss or motion for judgment of acquittal, resulting in the jury deliberating and finding the defendant guilty. 

On appeal, a defendant may argue the judge erred as a matter of law in denying the motion(s) to dismiss/for judgment of acquittal– as there was insufficient evidence in the record to support a finding of first-degree murder. This is precisely what occurred in Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969) – a foundational case in Florida first- and second-degree murder law.

Let’s take a look at how Florida’s 1st District Court of Appeal (Tallahassee and North Florida’s highest court) decided Hines – and what it means for those charged with second-degree and/or attempted second-degree murder in Florida.

KEY CASE: Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969)

In Hines, the defendant (Hines) was arrested and charged with the first-degree murder of his girlfriend. He was convicted after a trial judge denied his motion for a judgment of acquittal at trial, and appealed to the 1st DCA. The 1st DCA described the factual background of the case:

“Defendant, a 19-year-old, and the victim, his girlfriend, had attended a party lasting most of the night before the day of the shooting and were visiting at the house of a friend when the shooting occurred. The evidence shows that all were in a jovial mood, and there is no evidence of any argument or altercation. The friend, State’s witness, testified that the defendant asked for a shotgun and a shell so that he could go out and shoot squirrels. The friend lived in a wooded area in which there were squirrels. The friend further testified that the defendant went to the back door, returned to the room, ‘headed’ the gun at the friend and was told by the friend to take the gun ‘out of my face and unload it.’”

“The testimony shows that the defendant unbreached the gun and at least partially removed the shell. The friend testified that the defendant then walked over to the deceased and told her he ‘had a gun and to go out there and act like a squirrel and if he killed her then it wouldn’t be no accident’. The gun then fired, striking the deceased in the face. The defendant denied the testimony that he pointed the gun at his friend and denied that he made the statements to his girlfriend. He testified that the gun accidentally fired at close range when he closed the breach of the gun.”

Arguing that he accidentally discharged the firearm and that the State could not support a charge of “premeditated murder,” Hines urged the 1st District Court of Appeal to reverse his first-degree murder conviction.

Florida’s 1st DCA partially agreed with Hines – finding insufficient evidence to support a guilty finding of first-degree murder (e.g. that Hines intentionally killed his girlfriend after reflecting and deciding to do so). Because of that, the 1st DCA held that the trial judge should have granted Hines’s MJOA.

However, the 1st DCA did not release Hines from custody – instead, his conviction was reduced to second-degree murder. The 1st DCA found that the evidence in the record was sufficient to support a finding that Hines was acting with a “depraved mind” when he shot his girlfriend (e.g. “corrupt disregard for human life”):

“The more difficult question is whether the act causing the death evinced a depraved mind regardless of human life. ‘Depraved mind’ within the second degree murder statute has been variously defined as importing malice in the sense of ill will, hatred, or evil intent, and as an inherent deficiency of moral sense and rectitude. Ramsey v. State, 114 Fla. 766, 154 So.2d 855. It has also been stated that malice is not limited in its meaning to hatred, ill will and malevolence, but ‘denotes a wicked and corrupt disregard of the lives and safety of others … a failure to appreciate social duty.”

“Since the jury accepted the State’s witness’s version of the shooting, so must we, unless it was clearly not in accord with logic and reason. The act of the defendant in pointing the gun at the deceased and at the same time making the remarks which he made was, even though joking, evidence of a corrupt disregard for human life. Even if we accept the defendant’s statement that the gun fired upon closing the breach, which would be construing the circumstances most favorable to the defendant, such action committed while a gun is purposely pointed at the head of another from a very short distance certainly implies malice of the type present when death is caused by recklessness, even though a willful design is absent. … Although the evidence herein fails to support a finding of the element of premeditation necessary to sustain the verdict and judgment as discussed above, there does appear to be sufficient evidence to justify a verdict and judgment of second degree murder.”

In essence, the 1st DCA found Hines’s “remark” (e.g. “joke” about shooting his girlfriend like a squirrel) proved that he was acting with a “corrupt disregard for human life” at the time of the shooting. Since Hines discharging the gun caused the victim’s death, this made him guilty of second-degree murder regardless of if the death of his girlfriend was intentional/premeditated.

In sum, Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969) marks a significant development in Florida case law surrounding second-degree murder, attempted second-degree murder, and the presence of (or absence of) a “depraved mind.” The 1st DCA found that:

• There was insufficient evidence to support the claim that Hines fatally shot his girlfriend after reflecting upon whether to do so and intentionally choosing to kill her
• However, there was sufficient evidence to support the argument that Hines acted with a depraved mind (e.g. “corrupt disregard for human life”) when he pointed the gun at his girlfriend and it fired
• Because Hines’s “depraved mind” act caused the death of his girlfriend, he was guilty of second-degree murder (not first-degree murder) as a matter of law – requiring reduction of his conviction

Florida’s criminal defense community should take note of Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969), as it provides a clear breakdown of mens rea in Florida murder and attempted murder 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 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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