As much as we would wish that to be true, it is not. Attempted murder, under Florida statutes 777.04: Attempts, Solicitation, Conspiracy and 782.04: Homicide; Murder, is prosecuted and punishable with a murder prison sentence.

To be convicted of murder, two elements must be proven. In legal terms, they are called ‘mens rea’ or a guilty mind, and ‘actus reus’ or a guilty act.

Mens Rea= A Guilty Mind

Here, there must be intent behind the act of fatally harming another person. The act itself must show proper motive. A person must want to do harm or kill another human being. If a person were to pull a gun out and shoot it in the air at a hospital, the intent to use the gun around a large group of people would demonstrate a motive to do harm, even if the intended target was not injured.

Actus Reus= A Guilty Act

Here, there must be a purposeful action towards killing someone. That action can start with stalking, hiring another person to commit the murder, buying the necessary equipment to carry out the act: a knife, a gun, duct tape, rope, etc., and so forth. This can go as far as shooting at someone, kidnapping them, breaking into their house, bombing their place of work, etc.

To be charged with attempted murder, a person must have the intent to kill another individual but fail in the attempt. For example, breaking into someone’s house and swinging at them with a metal baseball bat, threatening their life, it is an act of aggression with the purposeful intent to kill. If the victim is able to get away, the act of killing the victim is not met so the attacker would be charged with attempted murder. In court, the prosecution must show that the attacker had a purposeful action behind the crime.

Attempted murder is a felony and results in either a 2nd-degree or 1st-degree felony charge. These charges range from five (5) years in prison to life in prison, depending on many factors: your previous criminal record, if the victim was injured, if the attempt was on a public official or police officer, a gang crime, is a firearm is used, etc.

A 2nd-degree felony charge comes from a “crime of passion,”- an attempted murder that was not planned. An example would be catching your spouse with another person and getting so mad that you grab the nearest item, a kitchen knife, and throw it at them, but miss. Here, you acted swiftly without thinking your actions through, but you knew you wanted to hurt them. A 2nd-degree felony carries a sentence of up to 15 years in prison. One exception is if the attempted murder were with a firearm; in which case, the court would enact the 10-20-LIFE law which would increase the sentence to 25 years. Using a firearm could also change a 2nd-degree felony into a 1st-degree felony.

A 1st-degree felony charge comes from a premeditated attempt- the murder was planned and calculated, in cold blood. Using the same example above, but this time, you take the kitchen knife out to the nearest store to get it sharpened, then head back to the house and throw it at them but miss. Here, you had time to make sure the blade was as sharp as possible before using it. A 1st-degree felony carries a sentence of 15 years to life in prison. Every sentence depends on how the prosecution proves the purpose, intent, and act of the crime.

If the act was in self-defense, there is a likely chance of not being convicted. If the incident was an accident- for example, backing over someone in a parking lot- there is also a likely chance of not being convicted. In both instances, the intent to kill or harm was not a factor so the prosecution would drop the attempted murder charges.

The burden of proof, or proving you are guilty, falls on the prosecution. The attorneys at Adams, Luka, & Benton, P.A. P.A. have homicide and attempted homicide trial experience and can form a defense for you which may lead to your charges lessened or dropped.