The Legal Controversy Over Florida’s Attempted Second-Degree Murder Law

June 9, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, attempted second-degree murder is a serious felony offense. It is considered a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. However, legal scholars and Florida courts have debated the legality of the state’s attempted second-degree murder statute – as it does not require someone to have specifically intended to commit murder for someone to be found guilty.

This article will outline the elements of attempted-second degree murder in Florida, discuss the debate surrounding Florida’s law against attempted second-degree murder, and defenses to the charge that may be utilized.

For someone to be found guilty of second-degree murder, the State must prove all of the following elements 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

Note: Mere preparation involves devising or arranging the means to commit the crime, whereas an overt act consists of movement to commit the crime after mere preparation. However, an “overt act” does not have to be the final act necessary to complete the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018); State v. Coker, 452 So. 2d 1135 (Fla. 2d DCA 1984).

For an act to be considered imminently dangerous to another and demonstrate a depraved mind (for purposes of attempted-second degree murder), 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

Florida’s law against attempted second-degree murder does not require that someone specifically intended to commit the crime of murder, but failed to do so. Despite this, the legality of Florida’s second-degree murder law (Fla. Stat. Section 782.04(2) and 777.04) has been upheld by the Florida Supreme Court. Brown v. State, 790 So.2d 389 (Fla. 1999). 

In Brown, the appellant challenged his conviction for attempted second-degree murder by arguing attempted second-degree murder cannot be considered an actual crime. This is because charging “attempt” typically requires a specific movement towards committing an underlying offense. Florida’s second-degree murder statute does not require that someone have attempted murder – only the commission of an act evincing a depraved mind that is imminently dangerous to human life.

The Brown majority upheld the statute, noting that despite its unusual language, attempted second-degree murder could be considered a crime. If the act that produced the attempt charge actually resulted in a person’s death, Brown reasoned, it would have constituted murder with a depraved mind – chargeable as murder in the second-degree. 

Brown cited the Florida Supreme Court’s 1983 Gentry v. State ruling, which upheld the crime of attempted-second degree murder on that same basis. Gentry v. State, 437 So.2d 1097 (Fla. 1983). Gentry held that “if the State is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime.”

The Brown dissenters strenuously objected to the logic of the Brown and Gentry majorities. They observed that Florida is only one of two states (the other being Colorado) that allows for the existence of an attempt crime that does not require specific intent to commit the underlying offense. Florida’s law regulating attempt (Fla. Stat. Section 777.04) reads:

“A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt.”

In accordance with Florida’s attempt law, the Brown dissent defined attempt as requiring two things to be true:

• There was a specific intent to commit the underlying offense
• There was an overt act taken in furtherance of the underlying offense, but failing to effect its commission

The dissent in Brown emphasized that the Florida Supreme Court had defined intent as “a specific intent to commit a particular crime and an overt act towards the commission of that crime” in Rogers v. State. Rogers v. State, 660 So.2d 237, 241 (Fla. 1995). It also cited a footnote in the U.S. Supreme Court case Braxton v. United States, 500 U.S. 344 (1991), which reads:
“Since the statute does not specify the elements of ‘attempt to kill,’ they are those required for an ‘attempt’ at common law, see Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952), which include a specific intent to commit the unlawful act. ‘Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.’ 4 C. Torcia, Wharton’s Criminal Law § 743, p. 572 (14th ed.1981). See also R. Perkins & R. Boyce, Criminal Law 637 (3d ed.1982); W. LaFave & A. Scott, Criminal Law 428-429 (1972).”

While the Brown dissent failed to strike down Florida’s attempted-second degree murder statute, its perspective has gained significant support in pockets of the legal community – and its logic has been adopted in 48 out of 50 U.S. states (and the U.S. Supreme Court).

In the law’s current form, defenses to the charge of attempted second-degree murder may include:

• Self-defense
• No overt act that went beyond mere preparation
• Mistaken identity
• Lack of a depraved mind
• Entrapment, if applicable

In sum, Florida’s attempted second-degree murder law criminalizes any act that presents an imminent, substantial danger to human life that was done with a depraved mind. Someone does not have to have attempted to commit second-degree murder to be found guilty of attempted second-degree murder.

The lack of a specific intent requirement to commit the underlying crime in Florida’s attempted second-degree murder law has been scrutinized by many jurists and legal scholars, including the dissenters in Brown v. State. But for now, the law remains on the books, and various defenses to the charge exist. 

If someone is arrested and formally charged in Florida for attempted-second degree 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.

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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