The Difference Between Attempted First-Degree & Attempted Second-Degree Murder in Florida

April 28, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

What is the Difference Between Attempted First-Degree & Attempted Second-Degree Murder in Florida? What to Know

In Florida, the crimes of first- and second-degree murder exist. So do the crimes of attempted first- and second-degree murder. But since attempted murder does not involve the death of the victim, what is the difference between attempted first- and second-degree murder? This article will explain that. 

What is First-Degree Murder?

First-degree murder is generally understood as “premeditated” murder – a murder that was planned in advance. Second-degree murder, though an intent to kill still exists, often involves a more spontaneous but still intentional murderous act that was not plotted beforehand. Both crimes can carry a sentence of up to life in prison. However, first-degree murder, if especially “atrocious, heinous, and cruel,” can result in someone receiving the death penalty. Francis v. State, 808 So.2d 110 (Fla. 2001)

The key distinction between attempted first- and attempted second-degree murder remains the element of premeditation. For someone to have attempted first-degree murder, the Florida Bar’s standard jury instructions note that they must have done all of the following:

• The defendant intended to commit the crime of first-degree murder
• The defendant committed an “overt act” towards the commission of that first-degree murder that went beyond mere preparation
• The defendant failed to commit the final act of first-degree murder

Attempted first-degree murder is a first-degree felony, punishable by up to life in prison. 

Common defenses to attempted first-degree murder include a lack of a specific intent to kill, self-defense, mental incapacity or insanity, lack of an overt act, or lack of premeditation.

Important: The line between mere preparation and an overt act is for the jury to decide. Mere preparation is defined as devising or arranging the means or measures necessary to commit the crime. An overt act requires movement towards committing the crime after the preparation, but does not need to be the “last possible act” before the crime takes place. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018); State v. Coker, 452 So. 2d 1135 (Fla. 2d DCA 1984).

Note: Premeditation involves killing or attempting to kill after consciously deciding to do so. The decision must be present in someone’s mind at the time of the act. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing, but it must be long enough to allow reflection by the defendant.

But premeditation is not the only difference between attempted first- and attempted second-degree attempted murder. Attempted first-degree murder requires a specific attempt to kill a particular victim, which was premeditated. But attempted second-degree murder requires only that someone intentionally committed an act imminently dangerous to human life with a depraved mind. Someone does not have to intend to kill a specific individual to be charged with attempted second-degree murder.

The Florida Bar’s standard jury instructions for attempted second-degree murder state that for someone to be found guilty, the State must prove the following beyond a reasonable doubt:

• The defendant intentionally committed an overt act that could have resulted in the death of the victim, but did not
• The act was imminently dangerous to another and demonstrated a depraved mind without regard for human life
• The overt act went beyond mere preparation

For an act to be considered imminently dangerous to another and demonstrate a depraved mind, the following three things must be true of it:

• 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

Attempted second-degree murder is a second-degree felony. This is punishable by up to 15 years in prison and a $10,000 fine. 

Various defenses to the charge of attempted second-degree murder include:

• Lack of intent to commit the act in a manner regulated by the statute
• Self-defense
• No overt act that went beyond mere preparation
• Mistaken identity
• Lack of a depraved mind, including acting in the “heat of passion”

Some have challenged Florida’s attempted second-degree murder law, arguing that without a specific intent to kill, a person cannot be charged with attempted murder. However, Florida’s courts have consistently upheld the constitutionality of the state’s prohibition against attempted second-degree murder. Rivero v. State, 752 So.2d 1244 (Fla 3rd DCA 2000); Kenon v. State, 780 So.2d 258 (Fla 5th DCA 2001)

Homicide Defense Lawyer in Tallahassee, FL

If someone is charged with murder or attempted murder, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 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 homicide defense lawyers at Pumphrey Law have decades of experience fighting to win for clients across the state of Florida. Call now at (850) 681-7777 for a free consultation.

  Social Share