What is Attempted Second-Degree Murder in Florida?

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

In Florida, second-degree murder is a felony punishable by up to life in prison. However, there is also the lesser known crime of attempted second-degree murder. This blog will explain the offense of attempted second-degree murder in Florida, and what must be proven for someone to be convicted of it. 

Attempted second-degree murder occurs when someone takes an intentional but unpremeditated action to kill someone and fails. Doing this in a premeditated fashion would be attempted first-degree murder. 

Florida Statutes Sections 782.04(2) and 777.04 both regulate attempted second-degree murder. Attempted second-degree murder is the product of these two statutes. Section 782.04(2) regulates actual murder, while 777.04 regulates attempted crimes. 

Even if someone is not killed, Section 777.04 can be used to modify second-degree murder charges under Section 782.04(2), producing the charge of attempted second-degree murder. This is recognized as a separate crime under Florida law. Brown v. State, 790 So.2d 389 (2000); State v. Brady, 745 So.2d 954 (1999).

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. 

The line between mere preparation and an “overt act” necessary to violate the statute is a fact for the jury to decide. Mere preparation consists of devising or arranging the means to commit the crime, whereas an overt act consists of movement to commit the crime after mere preparation. However, the “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).

Important: For someone to be convicted of attempted second-degree murder, the State does not have to prove a defendant had an intent to cause death. The State must only prove an imminently dangerous, overt act occurred that demonstrated a depraved mind and could have resulted in death.

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

The lack of a “depraved mind” is sometimes used as a defense in attempted-second degree murder cases when someone argues they acted in the heat of passion based on adequate provocation. For the jury to find a lack of a depraved mind, the following five things must be true:

• There was a sudden event that would have suspended the exercise of judgment in an ordinary and reasonable person
• A reasonable person would have lost normal self-control and been driven into a blind and unreasoning fury
• There was not a reasonable amount of time for a reasonable person to cool off
• A reasonable person would not have cooled off before committing the act that would have resulted in death
• Defendant in this case was so provoked and did not cool off, that they committed the act 

If there is reasonable doubt about whether someone had a depraved mind and instead acted in the heat of passion, they should not be found guilty of attempted second-degree murder.

Note: Attempted second-degree murder is a necessarily lesser included offense of attempted first-degree murder. Watkins v. State, 705 So.2d 938 (1998). However, it is not a necessarily lesser-included offense of attempted first-degree felony murder because it contains the additional element of a depraved mind. Coicou v. State, 39 So.3d 237 (2010). For more on lesser-included offenses, read about them here.

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.

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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