Attempted Manslaughter By Act in Florida?

April 29, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Attempted manslaughter by act is itself a crime, even if the victim does not die. This blog will discuss attempted manslaughter by act, the elements of the offense, potential punishments and defenses to this serious felony charge in Florida.

In Florida, manslaughter is defined as the unlawful killing of a human being by the act, procurement, or culpable negligence of another, when that killing is not excusable homicide or murder. Manslaughter by act occurs when someone commits an “unjustifiable and inexcusable” act by a human being that produces the death of another human being. 

Attempted manslaughter by act is regulated by Florida Statutes Sections 782.07 (manslaughter) and 777.04 (attempt). The Florida Bar’s standard jury instructions for attempted manslaughter by act state that to prove someone guilty of this offense, the following two elements must be proven beyond a reasonable doubt:

• The defendant intentionally committed an overt act that could have resulted but did not result in the victim’s death
• The overt act went beyond mere preparation

Attempted manslaughter by act is classified as a third-degree felony in Florida. A third-degree felony is punishable by up to 5 years in prison and a $5,000 fine.

Note: The line between mere preparation and an overt act is a question of fact for the jury to decide. Mere preparation is defined as devising or arranging the means or measures necessary to commit a crime. An overt act consists of some movement towards committing the crime that comes after mere preparation – but it does not have to be the last possible act towards completing the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

Importantly, someone cannot be found guilty of attempted manslaughter by act simply because they acted negligently (carelessly) towards someone. The act must go beyond mere carelessness without any intention to harm. 

The act serving as the basis for the charge must be an intentional one that could have caused death and was not justifiable or excusable. There is no crime of attempted manslaughter by culpable negligence. Taylor v. State, 444 So.2d 931 (Fla. 1983).

For someone to be convicted of attempted manslaughter by act, it is not required for the State to prove the defendant attempted to kill a specific person. The Florida Supreme Court ruled in 2010 that the crime only requires an intent to commit an act that could have caused death – not one intended to cause the death of a specific person. State v. Montgomery, 39 So.3d 252 (Fla. 2010)

Though this ruling was surprising to some, the Montgomery court reasoned that imposing a requirement for an intended victim for someone to be convicted of attempted manslaughter would make the crime of attempted manslaughter by act effectively indistinguishable from a charge of attempted murder. Following Montgomery, the standard jury instructions for attempted manslaughter by act were revised to reflect the correct legal standard. 

Some examples of conduct that may be charged as attempted manslaughter by act may include:

• A person fires a gun recklessly into a crowd, intending only to scare people, and wounds someone without killing them
• Someone throws a heavy object off a balcony into a busy street, striking someone but not killing them
• Pushing someone off a dock into dangerous waters, but they survive
• Starting a fire in an occupied building as a “prank,” causing smoke inhalation injuries but no deaths.

Under Florida law, there are various defenses to the charge of attempted manslaughter by act. One or more of the following defenses may apply, depending on the facts of a case:

• The alleged act was unintentional
• Justification, excuse, or self-defense
• Lack of evidence
• Intervening cause (an independent, unforeseeable event caused the otherwise non-dangerous act to be potentially deadly)

An example of an unforeseeable intervening cause would be a case where a defendant lightly pushed a victim off a sidewalk, and a reckless driver hit and injured the victim a moment later, without the defendant knowing the car was coming. 

Though the defendant’s shove was intentional and produced the chain of events that almost led to the victim’s death, the unforeseeable intervening cause undercuts a potential charge of attempted manslaughter by act – because the shove was not the proximate cause of the injury. 

In sum, attempted manslaughter by act requires an intentional, dangerous act that could have but did not result in the death of another. Under Montgomery, there does not have to be an intended victim for someone to be charged and convicted. However, negligent (careless) action cannot serve as the basis for an attempted manslaughter by act – the act must be deliberate.

Criminal Defense Lawyer in Tallahassee, FL

If someone is concerned about being charged with manslaughter or a related offense, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to 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 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 experienced criminal defense attorneys at Pumphrey Law have decades of experience fighting 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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