Attempted Homicide

Attempted murder in the first degree includes the lesser crimes of attempted murder in the second degree and attempted manslaughter by act, all of which are forms of attempted homicide and all of which are unlawful. An attempted homicide that is excusable or was committed by the use of justifiable deadly force is lawful.

Florida law provides for the following types of attempted homicide offenses:

  • Attempted Murder — First Degree (Premeditated) §§ 782.04(1)(a) and 777.04, Fla. Stat.;
  • Attempted Felony Murder §§ 782.051(1) and (2), Fla. Stat.;
  • Attempted Felony Murder — Injury Caused By Another §§ 782.051(3), Fla. Stat.;
  • Attempted Second Degree Murder §§ 782.04(2) and 777.04, Fla. Stat.;
  • Attempted Felony Murder — Third Degree §§ 782.04(4) and 777.04, Fla. Stat.;
  • Attempted Manslaughter by Act §§ 782.07 and 777.04, Fla. Stat.; and
  • Attempted Murder - Reclassified (By Victim's Employment As Law Enforcement Officer, Correctional Officer, Etc.) §§782.065, Fla. Stat.

Attorneys for Attempted Homicide in Palm Beach County, FL

The attorneys at Meltzer & Bell, P.A. represent clients in South Florida charged with serious criminal offenses for attempted murder and attempted manslaughter. Contact us to learn more about the pending charges, the elements of the offense that must be proven at trial and important defenses.

We represent clients in West Palm Beach in Palm Beach County, as well as Fort Lauderdale in Broward County and Miami in Miami-Dade County, FL. Call us at (561) 283-3259.


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Attempted Homicide Information Center


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Justifiable Attempted Homicide

An attempted homicide is justifiable and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant or to commit a felony in any dwelling house in which the defendant was at the time of the attempted homicide.


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Excusable Attempted Homicide

An attempted homicide is excusable and therefore lawful under any one of the three following circumstances:

  1. When the attempted homicide is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
  2. When the attempted homicide occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
  3. When the attempted homicide is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the attempted killing is not done in a cruel and unusual manner.

The term “dangerous weapon” is defined as any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.


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First Degree (Premeditated) Attempted Murder

The criminal offense of premeditated first degree attempted murder is found in §§ 782.04(1)(a) and 777.04, Fla. Stat.

To prove the crime of Attempted First Degree Premeditated Murder, the prosecutor with the State Attorney's office must prove the following three elements beyond a reasonable doubt:

  1. The defendant did some act intended to cause the death of the victim that went beyond just thinking or talking about it;
  2. The defendant acted with a premeditated design to kill the victim;
  3. The act would have resulted in the death of the victim except that someone prevented the defendant from killing the victim) or the defendant failed to do so.

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What is the Premeditated Design to Kill?

A premeditated design to kill means that there was a conscious decision to kill. The decision must be present in the mind at the time the act was committed.

The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the act. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the act was committed.

The question of premeditation is a question of fact to be determined by the jury from the evidence. It will be sufficient proof of premeditation if the circumstances of the attempted killing, and the conduct of the accused convince the jury beyond a reasonable doubt of the existence of premeditation at the time of the attempted killing.


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Heat of Passion on Legally Adequate Provocation

In many attempted murder cases in Florida, an issue arises as to whether the defendant acted in the heat of passion based on adequate provocation which negates any finding that the defendant acted with a premeditated design to kill.

In order to find that the defendant did not act with a premeditated design to kill because the defendant acted in the heat of passion based on adequate provocation:

  • there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
  • a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and
  • there was not a reasonable amount of time for a reasonable person to cool off; and
  • a reasonable person would not have cooled off before committing the act that constituted the attempt to cause death; and
  • the defendant was, in fact, so provoked and did not cool off before the defendant committed the act that constituted the attempt to cause the death of the victim.

If the jury has a reasonable doubt about whether the defendant acted with a premeditated design to kill because the defendant acted in the heat of passion based on adequate provocation, the jury is instructed to find the defendant guilty of Attempted First Degree Premeditated Murder.


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Attempted Felony Murder under § 782.051(1) and (2)

To prove the crime of Attempted Felony Murder, the prosecutor with the State Attorney's office must prove the following three elements beyond a reasonable doubt:

  1. the defendant committed or attempted to commit a crime alleged;
  2. while engaged in the commission, attempted commission, or escape from the immediate scene of the crime alleged, the defendant committed or aided or abetted an intentional act that is not an essential element of the crime alleged;
  3. this intentional act could have but did not cause the death of the victim.

In order to convict the defendant of Attempted Felony Murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.


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Attempted Felony Murder - Injury Caused by Another

Attempted felony murder for an injury caused by another is prohibited by § 782.051(3) Fla. Stat.

To prove the crime of Attempted Felony Murder, the prosecutor with the State Attorney's Office must prove the following two elements beyond a reasonable doubt:

  1. the defendant committed or attempted to commit the crime alleged;
  2. the victim was injured during the commission or attempted commission of an escape from the immediate scene of the crime alleged by an individual other than the person or persons accused of committing, attempting to commit, or escaping from the immediate scene of the crime alleged.

In order to convict the defendant of Attempted Felony Murder, it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill.


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Attempted Second Degree Murder

In Florida, the crime of attempted second-degree murder is charged under §§ 782.04(2) and 777.04, Fla. Stat.

To prove the crime of Attempted Second Degree Murder, the State must prove the following two elements beyond a reasonable doubt:

  1. The defendant intentionally committed an act which would have resulted in the death of the victim except that someone prevented the defendant from killing the victim or the defendant failed to do so.
  2. The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life.

The term “act” is defined to include a series of related actions arising from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

  1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
  2. is done from ill will, hatred, spite, or an evil intent, and
  3. is of such a nature that the act itself indicates an indifference to human life.

To convict the defendant of Attempted Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.


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Other Acts of Attempted Homicide

Attempted Manslaughter by Act

The crime of attempted manslaughter by the act is prosecuted under §§ 782.07 and 777.04, Fla. Stat.

To prove the crime of attempted manslaughter by act, the prosecutor with the State Attorney's office must prove the following element beyond a reasonable doubt:

  1. the defendant intentionally committed an act or procured the commission of an act;
  2. the act would have resulted in the death of the victim except that someone prevented the defendant from killing the victim or the defendant failed to do so.

However, the defendant cannot be guilty of attempted manslaughter by act by committing a merely negligent act. Every person has a duty to act reasonably and use ordinary care toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.

In order to convict a person of attempted manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act which would have caused death and was not justifiable or excusable attempted homicide.


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Attempted Murder Reclassified by Employment

Some attempted murder crimes are reclassified by the victim's employment under § 782.065, Fla. Stat. In Ramroop v. State, 214 So. 3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla. Stat. is a reclassification statute that creates a substantive offense.

The victim was employed as and engaged in the lawful performance of a legal duty as a:

  • law enforcement officer;
  • part-time law enforcement officer;
  • auxiliary law enforcement officer;
  • correctional officer;
  • part-time correctional officer;
  • auxiliary correctional officer;
  • correctional probation officer;
  • part-time correctional probation officer; or
  • auxiliary correctional probation officer.

The defendant knew that the victim was employed as a:

  • law enforcement officer;
  • part-time law enforcement officer;
  • auxiliary law enforcement officer;
  • correctional officer;
  • part-time correctional officer;
  • auxiliary correctional officer;
  • correctional probation officer;
  • part-time correctional probation officer; or
  • auxiliary correctional probation officer.

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Conclusion

If you were charged with any form of attempted homicide, including attempted first-degree premeditated murder, first-degree attempted felony murder or attempted manslaughter, then contact an experienced criminal defense attorney in West Palm Beach, FL, at Meltzer & Bell, P.A..

We can help you understand the homicide charges pending against you, the elements of the offense, and potential defenses that you can use to fight your charges throughout South Florida including in Ft. Lauderdale in Broward County, West Palm Beach in Palm Beach County and Miami in Miami-Dade County, FL.

Call (561) 283-3259.


This article was last updated on Thursday, March 22, 2018.

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