The Florida Bar

Florida Bar Journal

Abandoning an Attempt To Do the Unintended: Applying the Abandonment Defense to Attempted Homicide Offenses With No Intent-to-Kill Element

Featured Article

Section 777.04(5)(a) creates a defense to an attempt offense if, “under circumstances manifesting a complete and voluntary renunciation of his or her criminal purpose, the defendant…[a]bandoned his or her attempt to commit the offense….” This article considers this defense as applied to the offenses of attempted second-degree murder and attempted manslaughter, neither of which has an intent-to-kill element. One of two results seems to follow when we apply the defense to these offenses: 1) The defense will never be available because, in the absence of an intent-to-kill element, there is no unfulfilled “criminal purpose” that the defendant can abandon in order to raise the defense; or 2) the defense will apply in any case in which the defendant voluntarily decided not to kill even though he never intended to kill (which, since intent-to-kill is not an element, will probably occur in most cases).

Neither alternative is desirable. But the problem here is not the existence of the defense. The problem is that an attempted homicide offense with no intent-to-kill element is an illogical concept.

Part I of the article notes the problems with recognizing an attempted homicide offense with no intent-to-kill element. The main problem is determining what acts that might-have-but-did-not cause death are included in the attempt offense. This requires juries to speculate on what might have happened if the facts of the case were changed. Such a hypothetical test cannot be rationally and consistently applied. A second problem is one discussed in this article.

Part II discusses the abandonment defense. This defense excuses defendants for crimes already committed (the attempt) and it is designed to encourage defendants not to cause greater harm by fulfilling their original intent (committing the completed offense). But the defense is available only if there is something still left to do from the original intent that can now be abandoned. If there is nothing left to do, there is nothing to abandon. If there is nothing to abandon, there is no defense.

Part III summarizes the Florida cases that have affirmed convictions for attempted second-degree murder and exposes the problems with trying to apply the abandonment defense in such cases. Part IV considers several non-Florida authorities that say this defense is not available if, before the abandonment occurred, either the victim was injured or the defendant fired a firearm. It will be argued that Florida should not recognize such exceptions, primarily because nothing in the language of §777.04(5) supports any exceptions. The article concludes that because of these problems, the Florida Supreme Court should recede from the cases that recognized attempted homicide offenses with no intent-to-kill element.

Attempted Homicide Offenses With No Intent-to-Kill Element
Under F.S. §777.04(1), “the offense of criminal attempt” occurs when one “attempts to commit an offense…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….” The attempt offense has two elements: “[An] inten[t] to commit the offense and commit[ing] an overt act toward its completion.”1 It is logically impossible to intend to do something one does not intend to do, such as cause an unintended result. Thus, it seems to be logically impossible to attempt to commit an offense that has an element of causing an unintended result (because one cannot intend to cause that result and, thus, cannot intend to commit the offense).

However, in Brown v. State, 790 So. 2d 389, 390 (Fla. 2001), the court held there is an offense of attempted second-degree murder, and it has no intent-to-kill element but rather only requires proof that the defendant “intentionally committed an act which would have resulted in the death of [the victim] except that someone prevented him from killing…or he failed to do so….” In Williams v. State, 123 So. 3d 23, 27 (Fla. 2013), the court held there is an offense of attempted manslaughter, which also “does not require [proof of] an intent to kill.” The court later approved standard jury instructions for attempted manslaughter that contain the same “would have resulted” language from Brown.2

Florida is one of very few states to recognize an attempted homicide offense with no intent-to-kill element. Courts in other states say homicide offenses with no intent-to-kill element cannot be attempted because one cannot “attempt to commit an act which one does not intend to commit”3 or “attempt to achieve an unintended result.”4 An attempt, by nature,” said one court, “is a failure to accomplish what one intended to do”:

Attempt means to try; it means an effort to bring about a desired result….The concept of attempt seems necessarily to involve the notion of an intended consequence, for when one attempts to do something one is endeavoring or trying to do it. Hence, an attempt requires…an intended consequence.5

As stated in State v. Gray, 654 So. 2d 552, 553 (Fla. 1995), the primary problem with recognizing an attempted homicide offense with no intent-to-kill element is the “difficult[y] with determining what constitutes an ‘overt act’ that could, but does not, cause death.” How do we determine whether an act that did not kill could (or would) have killed? “Could or would have killed” means “could or would have killed if the facts were different both from what they actually are and from what was intended. ” How can we rationally apply such a hypothetical test?

Many actions that did not kill could or would kill if the facts were changed. Driving recklessly or drunk, a single punch to the head,6 a slashing wound, a gunshot, a blow with a blunt object — all could or would kill if a child runs in front of the car, if one’s arm shakes or is jostled as the trigger is pulled or the knife is plunged, if bullets ricochet, if the victim ducks one way rather than another and the blow hits the right spot, if the wound gets infected and goes untreated. Most homicide offenses outlaw, not specific acts, but any act that causes death. Severing the act committed from the intent to cause the result leaves us no principled way to determine which, of the innumerable acts that could or would (if they caused death) prove the completed offense, also prove an attempt.7

The Gray court recognized this problem when it receded from Amlotte v. State, 456 So. 2d 448 (Fla. 1984), and held that Florida would no longer recognize an offense of attempted first-degree felony murder (which, the Amlotte court said, had no intent-to-kill element but rather only required proof of an act that “could, but does not, cause…death”).8  The Gray court said “the more logical and correct position” here was the position advocated by the Amlotte dissent, which is that attempted felony murder is “a crime requiring one to intend to do an unintended act which is a logical absurdity.”9

But in Brown and Williams, the court did not explain why this “more logical and correct position” would not also apply to attempts to commit second-degree murder and manslaughter. How are the problems identified in Gray eliminated by changing the could-have test to a would-have test, or by renaming the offense from attempted felony murder to attempted second-degree murder or attempted manslaughter? Attempted second-degree murder is a permissive lesser offense of attempted first-degree felony murder,10 and attempted manslaughter is a necessary lesser offense.11 Thus, any set of facts that would prove attempted first-degree felony murder may (depending on the precise facts in the case) prove attempted second-degree murder and would necessarily prove attempted manslaughter. Neither Brown nor Williams cited Gray, much less tried to distinguish it.

A related problem, which is relevant to the issue discussed in this article, is found in the standard jury instructions for attempted second-degree murder and attempted manslaughter. Both offenses require proof that the defendant “committed an act which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so. ”12 But how can one “fail to do,” or be “prevented from doing,” something one never intended to do? Would we say that all but a handful of people have “failed” to play center for the Boston Celtics even though only a slightly larger handful ever tried to achieve that goal? Or that “someone prevented” all those non-Celtic centers from achieving this goal that they never attempted to achieve?

The elements of the abandonment defense give rise to a similar conundrum. How does one “renounce the purpose to do,” or “abandon an attempt to commit,” or “prevent to commission of,”13 something one never intended to do, i.e., kill another?

The Abandonment Defense
The abandonment defense is of fairly recent origin. The English common law did not recognize it.14 Although some older American cases recognized it, the major impetus for it came from a provision in the Model Penal Code, which was approved by the code reporters in 1962.15

Section 5.01(4) of the code provides: “When the actor’s conduct would otherwise constitute an attempt…, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” This section goes on to state:

[R]enunciation…is not voluntary if it is motivated…by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar…victim.

Section 777.04(5)(a) was enacted in 197416 and it is obviously based on this code provision. There are few Florida cases addressing the scope of this defense, none of which are relevant to this article.17

This defense allows one to, in effect, “uncommit” a crime already committed. One “who has committed a crime [can] abandon or renounce [the] criminal enterprise and thereby extinguish any previously incurred criminal liability. [The defense] amounts to an official absolution for guilt already incurred.”18 This makes sense because, while one has already committed a crime (the attempt offense), one has not yet committed the more serious crime that one intends to commit (the completed offense). When the abandonment occurs, there is still something left to do that one originally intended to do, and still intends to do, and can now voluntarily renounce and desist from doing.

This logic does not apply to attempted homicide offenses with no intent-to-kill element. If the defendant never intended to kill, there is no intent to abandon. Nor is there any other unfulfilled intent that can be abandoned.

To illustrate the problem, consider the Florida cases that upheld convictions for attempted second-degree murder. Start with Watkins v. State, 705 So. 2d 938 (Fla. 5th DCA 1998). After an altercation with the victim, Watkins got a firearm from his car “and fired several shots at the victim, striking him twice — once in each leg”; Watkins “was aiming at the ground and the bullets were bouncing off the ground into his legs.”19 There was no indication that Watkins intended to kill or that he intended to do anything other than exactly what he did.

Assume that Watkins always intended to do exactly what he did. According to the court, an attempted second-degree murder was committed when the shots were fired. How could Watkins abandon that crime? Once the shots were fired, there was nothing further for him to do to fulfill his original intent, which means there was nothing for him to abandon.

Consider now the facts in the other Florida cases that affirmed convictions for attempted second-degree murder:

1) During a robbery, “defendant shot [the victim] in the leg after [he] told defendant that the safe was on a timer and would require ten minutes to open.”20

2) The defendant fired several shots into car occupied by three men, killing his intended victim, wounding the second man, but missing the third. “There is nothing in the record to indicate [defendant] intended to kill [the victims of the two attempt charges].”21

3) The defendant beat the victim about the head with a metal bar, stepped on her face, smashed in her front teeth, and punctured her scalp.22

4) The defendant repeatedly punched the victim and choked her until she blacked out.23

5) The defendant grabbed a police officer’s gun and “pointed [it] at that officer while making a motion to squeeze the trigger,” although the gun did not fire. “Wielding and pointing a handgun at someone is an act teeming with consequences and is reasonably understood as an act toward the commission of murder.”24

In two of these cases, the defendants may have stopped the attack because a third party came on the scene (although none of the courts noted any evidence indicating any of the defendants ever intended to kill).25 In the other cases, it appears the defendants voluntarily desisted from any further violence.

Assume all these defendants did voluntarily desist from any further attack, and they did exactly what they initially set out to do. This means there was nothing for them to abandon in order to raise the defense to the attempt crimes they already committed. If there is nothing for them to abandon, then the defense was not available. And it will never be available in any case of attempted second-degree murder or attempted manslaughter, even if it is undisputed that the attack on the victim ended because the defendant voluntarily ended it.26

It is possible that defendants in cases like these did intend to kill at some point. The only Florida homicide offense with an intent-to-kill element is premeditated murder, and premeditation is “more than a mere intent to kill.”27 If the defendant kills with a nonpremeditated intent to kill, the offense committed (if the killing was not justifiable or excusable) must be some other form of unlawful homicide.28 Thus, it could be argued that the defense will be available in those attempts to commit second-degree murder or manslaughter in which a nonpremeditated intent to kill was voluntarily abandoned.

The problem here is that the defense is available for these offenses only if one abandons the intent to do something that is not an element of the offense attempted. If one renounces the intent to do something that is not an element of the offense, how is this an abandonment of an attempt to commit that offense? Consider again the Watkins case. Suppose that, when he got his firearm, Watkins also intended to shoot up the victim’s car but, after shooting him in the legs, he abandoned his intent to shoot the car. Seems silly to say that this would make the defense available to the charge of attempted second-degree murder. But Watkins’ intent to kill the victim is no more relevant to the charge of attempted second-degree murder than is his intent to shoot the car; neither is an element of the completed offense. In abandoning either intent, he was abandoning an intent to do something that is irrelevant to proving the completed offense.

Thus, it seems the abandonment defense will not apply to attempts to commit second-degree murder or manslaughter unless we say it is available only if one voluntarily abandons the intent to do something (kill the victim) that is not an element of the completed offenses. This seems to be an absurd proposition.

Alternatively, one might argue the defense will always be available in these cases. There was something left to do (kill the victim) and one voluntarily decided not to do so, a decision that may have been made before the attempt offense even began. Of course, we are now arguing that defendants have a defense to attempt offenses they have already committed because they abandoned intents to do something they never intended to do; and the intent that was “abandoned” is not an element of the crime allegedly attempted. This also seems to be an absurd proposition.

But the absurdity here results from recognizing an attempted homicide offense with no intent-to-kill element. If we do that, we must conclude the abandonment defense either 1) never applies to these offenses unless the defendant abandons an intent that is irrelevant to proving the completed offense; or 2) always applies to such offenses, at least if it is clear that there was a voluntary decision not to kill (even though it was made before the attempt offense began).

The Shot-Fired and Victim-Injured Exceptions to the Defense
Some authorities say the defense should not be available if, before the abandonment occurs, the victim is injured or the defendant fired a firearm. To see the problems with this conclusion, we must first discuss passages in the commentary to the Model Penal Code and in two well-known criminal law treatises, as well as the cases these three sources cited in those passages. These three sources are cited as authority in four cases from other jurisdictions that recognize these exceptions to the defense. But the cases cited in the three nonjudicial sources do not support the rules announced in those sources, which means the four cases, which relied on these sources to recognize exceptions to the defense, are based on unconvincing authority.

As to the Model Penal Code, after concluding the abandonment defense should be allowed, the code commentators went on to say:

[T]he defense is allowed even where the last proximate act has occurred but the criminal result can be avoided — e.g., where the fuse has been lit but can still be stamped out. If, however, the actor has gone so far that he has put in motion forces which he is powerless to stop, then the attempt has been completed and cannot be abandoned. In accord with existing law, 257 the actor can gain no immunity for this completed effort (e.g., firing at the intended victim and missing); all he can do is desist from making a second attempt.29

Three cases are cited at footnote 257: Queen v. Goodman, 22 U. Ca. C.P. 338 (1872); State v. Gray, 8 P. 456 (Nev. 1885); and People v. Corkery, 25 P.2d 257 (Cal. Ct. App. 1933). These cases do not fully support the propositions for which the Code commentators cite them, particularly as to the existence of a shot-fired exception to the abandonment defense.

In Goodman, the defendant procured Waters to burn another’s dwelling. While Goodman waited at another location, Waters tried to start the fire by lighting an oil-soaked blanket. The match went out and Waters left without trying to light the blanket again. The court affirmed Goodman’s conviction for being a principal to attempted arson, concluding that any abandonment by Waters’ was involuntary and “the attempt was complete, as an attempt, at that moment, and no change of mind or intention on prisoner’s part, can alter its character.”30

In Gray, the defendant was convicted of felony murder. He claimed he abandoned the robbery attempt before he shot the victim (accidentally, Gray said, although it may have resulted when the victim grabbed the barrel of Gray’s shotgun). The court held that Gray was not entitled to an abandonment instruction because any abandonment was involuntary.

In Corkery, the defendant and an accomplice were convicted of robbing two victims. Corkery ran when one of the victims yelled; the accomplice stayed and robbed the second victim. Corkery argued he abandoned his role in the robbery before it was complete and, thus, he was guilty only of an attempt. Affirming the robbery conviction, the court said: 1) “before [Corkery] departed from the scene[,] a part of the personal property of the victims had been taken [by the accomplice, and thus Corkery’s] guilt…was complete before he [tried] to withdraw”; and 2) Corkery was liable for the actions of the accomplice — even those that occurred after Corkery left — because Corkery’s abandonment was not voluntary.31

Returning now to the code commentary, we first address the assertion that, if the defendant has “put in motion forces which he is powerless to stop, then the attempt has been completed and cannot be abandoned.”32 The meaning here is unclear. Abandonment is a defense to a crime that “has been completed,” i.e., the attempt offense. If the defense is not available if “the attempt has been completed,” then there is no such defense. If the attempt offense itself is not yet “completed,” there is no need for the defense because no crime was committed.

If by “the attempt has been completed” we mean the defendant cannot stop the crime that was being attempted from going forward to completion, then this is a correct statement of law; abandonment is a defense to an attempt, not to a completed crime. This comment about “putting forces in motion one is powerless to stop” applies to the Goodman and Corkery cases to the extent that those defendants “put in motion” the “force” of an accomplice whose actions they were “powerless to stop.” Thus, the Corkery court’s conclusion — that Corkery’s unilateral abandonment of his further role in the robbery did not relieve him of his liability, under the law of principals, for the accomplice’s actions — does support the proposition that one cannot abandon an attempt after putting in motion forces one is powerless to prevent from completing the crime.

Similarly, in a single-defendant case, if the fuse is lit and one leaves and goes so far away that one cannot come back to extinguish the fuse, then the “abandonment” of the intent to complete the crime, even though made before the explosion occurs, will be ineffective because one cannot stop the explosion. Thus, to raise the abandonment defense, it is not enough to show there was a mental abandonment of the intent to complete the crime. One must also stop the crime from being completed, even if by an accomplice.

So interpreted, the code’s comment about “putting forces in motion one is powerless to stop” makes sense, as long as we realize the commentators are not saying the defense is unavailable if the attempt offense has already been committed. The “existing law” that the commentators cite (the three cases just noted) is “in accord” with a rule that a defendant “can gain no immunity for this completed effort” if, by “completed effort,” we mean the crime went forward to completion even though the defendant renounced the intent to complete the crime before it went on to completion.33 But it makes no sense to say that we should recognize the defense, but it is not available if “the attempt [offense itself] has been completed.”34

Most importantly for present purposes, these three cases do not establish that the defense is unavailable if the defendant “completed [the] effort [by] firing at the intended victim and missing. ”35 None of these cases involved a defendant who fired at and missed a victim. Nothing in these cases supports a shot-fired exception to the defense.

Turning to the two criminal law treatises, in the 1969 edition of his treatise, Professor Rollin Perkins said:

Attempted murder cannot be purged after the victim has been wounded, no matter what may cause the plan to be abandoned. And probably the same is true after a shot has been fired with intent to kill . On the other hand, although a criminal plan has proceeded far enough to [prove an] attempt, it would be sound to recognize the [defense] so long as no substantial harm has been done and no act of actual danger committed ….36

Perkins cites no authority for these assertions.

Similar comments are found in LaFave and Scott’s treatise, first published in 1972: “[D]oes there come a point at which it is too late for the defendant to withdraw? Obviously there must be, for it would hardly do to excuse the defendant from attempted murder after he had wounded the intended victim or, indeed, after he had fired and missed.37

LaFave and Scott cite the Corkery and Gray cases noted above, which do not support the proposition for which they are cited. No shots were fired, and no victims were injured (at least not in the physical sense), in Corkery. A shot was fired in Gray, but the victim was killed, which means a completed offense was committed.

In sum, neither the code commentators nor the treatise authors cite convincing caselaw for the victim-injured and shot-fired exceptions to the defense that they identify. Nonetheless, four courts have cited these three sources (and, by inference, the cases they rely upon) as authority to conclude that the abandonment defense is not available if the victim is injured. None of the courts adopt the shot-fired exception; however, no shot was fired in these cases. A fifth court, in dicta, “reject[ed] the bright-line rule [that the defense] is not available once the defendant injures the victim,” but did not say why it was rejecting this rule.38

In the first of the four cases recognizing a victim-injured exception, the defendant stabbed the victim twice but then became “remorseful and wept” and took him to the hospital.39 Citing the three sources just noted, the court held that the trial court erred in granting a judgment of acquittal to an attempted premeditated murder charge on the ground that abandonment was proven as a matter of law because “abandonment must occur before the crime is completed or the harm is done. … The offense here was completed with the first thrust of [defendant’s] knife. This was followed by a second stabbing….Two attempts were completed and [defendant] abandoned the third attempt….Here, abandonment came too late.”40

There are problems with this logic. The court says “abandonment must occur before the crime is completed” and this offense “was completed with the first thrust of the knife.” But the only crime that was “completed” by the knife thrusts was the attempt offense; and, if there is no abandonment defense if the attempt offense is completed, then there is no such defense.

As to the “abandonment occurring before the harm is done,” we must distinguish any harm caused by the attempt from the harm that must to proven to prove the completed offense. Certainly, the abandonment must occur before the harm of the completed offense occurs. But if we want to encourage defendants to abandon the greater harm they originally intended to inflict, we should not say there is no defense if the attempt offense has already caused some lesser degree of harm.

The other three cases that recognized a victim-injured exception to the defense relied on one or both of the treatises. The first court held that, even though the defendant called an ambulance to take the victim to the hospital after stabbing her nine times, he was not entitled to an instruction on the defense because “[the] attempt[ed murder]…was complete…when he stabbed his victim [the first time; thus] he had passed beyond the point at which abandonment was legally possible.”41 But, again, the fact that the attempt “was complete when he stabbed his victim” is not a valid reason for not allowing the defense, whose purpose is to prevent the completed crime.

The second court upheld the attempt conviction when the defendant tried to poison his wife but, when she regained consciousness, he gave her an antidote and she went to the hospital. “[A]bandonment is no longer a defense,” this court said, “when an. ..injury results”: “[When] he went for the antidote, [the defendant] had completed [the] prefatory acts…that show his murderous intent. The crime was complete, even if the homicide was not, long before he went for an antidote….The time to have abandoned the venture was before [the victim was] seriously injured….”42

Once again, 1) the crime that “was complete” was the attempt; and 2) the fact that the victim was seriously injured in the attempt does not necessarily mean that we should not try to encourage defendants not to inflict even more serious injury by completing the intended crime.

The third court held the defendant, who choked the victim, but then voluntarily stopped, was not entitled to an instruction on the defense because “[his] argument comes down to the absurd proposition that he should be excused from attempted murder after he injured [the victim].”43 T he court did not explain why it was absurd to propose that, even though the defendant had already injured the victim in the attempt, he should be encouraged to desist from killing her by allowing him to abandon the attempt offense. The defendant was not arguing that he should be totally “excused from injuring” the victim; he could be convicted of a completed offense like aggravated battery.

In sum, the four cases that recognize a victim-injured exception to the defense are, through the three nonjudicial sources noted above, based on older cases that do not support this exception. These cases are not well reasoned; none offer a good reason for carving out this exception to the defense.

Florida courts should not recognize any such exceptions. No language in §777.04(5) supports any exception. Even if we read in such exceptions, there will be further problems.

As to a victim-injured exception, does this require serious injury or would any injury qualify? Why limit this to physical injuries, particularly if even slight physical injuries qualify? The victim who has an ax swung at her head, maybe several times, may suffer significant PTSD-type problems for years to come, even though none of the attempts hit flesh. Her ultimate level of suffering may be much greater than that of the victim who suffered only slight physical injury; why should we allow the defense in the latter case, but not the former?

As to a shot-fired exception: Suppose one swings an ax, a baseball bat, or a similar item at the victim but misses. Why distinguish these attempts from shot-fired cases? In all these cases, the defendant intended to seriously injure the victim but failed because he or she missed. Why distinguish firearm-firing defendants from others for this purpose? If we say firing a firearm is more dangerous because bullets travel faster and farther than swung bludgeons, what about throwing a rock or a spear, or shooting a crossbow, or trying to run the victim over with a car? Why distinguish these attempts from shot-fired attempts?

What if one did not intend to shoot, e.g., one pulls a firearm and it accidentally discharges. Does this matter, or is it enough that the shot was fired, regardless of the intent? If we say that intent is irrelevant and the defense is unavailable if a shot is fired even if one did not intend to shoot, would the defense also be unavailable to one who displays a firearm even if it was not fired? In both cases, the actions and mental state are identical: He or she displayed, but did not intend to shoot, a firearm. Why should the accidental discharge of the firearm determine the availability of the defense?

What if one tries to fire but fails, due to a misfire or the like? Here, the defendant’s acts and mental state equal those of the shot-firing defendant, but the availability of the defense turns on circumstances beyond the defendant’s control. Must we add to the shot-fired exception a shot-intended-to-be-fired corollary?

In sum, even if we can tease exceptions from a statute that does not expressly authorize them, we must still answer serious questions about the scope of the exceptions. Thus, we must either 1) rely on the statute’s plain language to say there are no exceptions to the defense; or 2) embark on a case-by-case journey regarding the scope of judicially created exceptions, with no statutory language for guidance.

Finally, even if we create exceptions, we will still have cases not within them, which leaves us with the same Zen riddle we started with: How does one “manifest a complete and voluntary renunciation of,” or “[a]bandon[] [an] attempt to commit,” or “otherwise prevent[ the] commission of,”44 something one never intended to do?

Serious problems arise when we try to apply the abandonment defense to attempted homicide offenses with no intent-to-kill element. These problems are caused by the existence of these attempted homicide offenses. The Florida Supreme Court should recede from Brown and Williams.

1 Brooks v. State, 762 So. 2d 879, 897 (Fla. 2000).

2 In re Standard Jury Instructions in Criminal Cases — Instruction 6.6, 132 So. 3d 1124, 1126 (Fla. 2014).

3 People v. Hassin, 48 A.D.2d 705, 705, 368 N.Y.S.2d 253, 254 (N.Y.A.D. 1975).

4 People v. Viser, 343 N.E.2d 903, 910 (Ill. 1975).

5 State v. Kimbrough, 924 S.W.2d 888, 890 (Tenn. 1996) (citations omitted); accord Braxton v. United States, 500 U.S. 344, 351, n.* (1991) (“Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.”); Bruce v. State, 566 A.2d 103, 106 (Md. 1989) (“[A]ttempted murder requires an intent to bring about that result described by the crime of murder ( i.e., the death of another).”); Commonwealth v. Griffin, 456 A.2d 171, 177 (Pa. Super. Ct. 1983) (“Numerous other jurisdictions have also held that an attempt to commit murder requires an intent to kill.”); Goodson v. Commonwealth, 467 S.E.2d 848, 855 (Va. Ct. App. 1996) (“A person cannot be guilty of an attempt to commit murder unless he has a specific intent to kill.”); see also cases cited in Brown, 790 So. 2d at 397 (Harding, J., dissenting).

6 See Hall v. State, 951 So. 2d 92, 94 (Fla. 2d DCA 2007), abrogation on other grounds recognized, Ferrer v. State, 69 So. 3d 360 (Fla. 2d DCA 2011).

7 See Amlotte v. State, 435 So. 2d 249, 254-55 (Fla. 5th DCA 1983) (Cowart, J. dissenting).

8 Gray, 654 So. 2d at 554 (citing Amlotte, 456 So. 2d at 449).

9 Id. at 553 (citing Amlotte, 456 So. 2d at 450) (Overton, J., dissenting).

10 Coicou v. State, 39 So. 3d 237 (Fla. 2010).

11 E.g., Ward v. State, 655 So. 2d 1290 (Fla. 5th DCA 1994).

12 Fla. Std. Jury Instr. (Crim.) 6.4 and 6.6.

13 Fla. Stat. §777.04(5) (2013).

14 Paul R. Hoeber, The Abandonment Defense to Criminal Attempt and Other Problems of Temporal Individuation, 74 Cal. L.R. 377, 377-78, 381-82, and n. 1 and n.13 (1986).

15 Id. at 381-82; Daniel G. Moriarty, Extending the Defense of Renunciation, 62 Temple L. Rev. 1, 7-8 (1989).

16 Ch. 74-383, §12, Laws of Fla.

17 Most Florida cases deal with defendants who try to abandon a crime being committed with accomplices. When multiple defendants are involved, the defendant raising the defense must show, not only that “he abandoned…his intention” to complete the original offense, but also that he “communicated his renunciation to his accomplices in sufficient time for them to consider abandoning the criminal plan.” Smith v. State, 424 So. 2d 726, 732 (Fla. 1982). There are two single-defendant Florida cases. In one, the court reversed the summary denial of a Rule 3.850 motion that alleged trial counsel was ineffective for failing to request an instruction on the defense. Romero v. State, 48 So. 3d 971 (Fla. 3d DCA 2010). In the second case, the court held an instruction on the defense was not required because the evidence showed the abandonment was involuntary. Carroll v. State, 680 So. 2d 1065 (Fla. 3d DCA 1996).

18 Moriarty, Extending the Defense of Renunciation, 62 Temple L. Rev. at 2, 4 (1989); O’Shaughnessy v. People, 269 P.3d 1233, 1235 (Col. 2012) (“[A]lthough the crime of attempt is complete once the actor takes a substantial step towards the commission of the crime, the affirmative defense of abandonment applies if the actor completely and voluntarily renunciates his criminal intent thereafter.”); Ramirez v. State, 739 P.2d 1214 (Wy. 1987) (“The defense of abandonment…may be available even after the defendant has taken a substantial step toward commission of the crime.”).

19 Watkins, 705 So. 2d at 939.

20 Pitts v. State, 710 So. 2d 62, 62 (Fla. 3rd DCA 1998); see also Brown v. State, 569 So. 2d 1320, 1321 (Fla. 1st DCA 1990) (similar).

21 Shellman v. State, 620 So. 2d 1010, 1012 (Fla. 4th DCA 1993).

22 Thompson v. State, 588 So. 2d 687, 688 (Fla. 1st DCA 1991).

23 Marti v. State, 756 So. 2d 224, 224 (Fla. 3d DCA 2000).

24 Burns v. State, 584 So. 2d 1073, 1074, 1076 (Fla. 4th DCA 1991).

25 Marti, 756 So. 2d at 226; Johnson, 588 So. 2d at 688.

26 Two Florida cases expressly address the sufficiency of the evidence to prove attempted manslaughter. Both found the evidence sufficient. In Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983), the court said Taylor’s “intentionally fir[ing] the shotgun at [the victim]” was “sufficient proof that he intended to kill him.” In Murray v. State, 491 So. 2d 1120 (Fla. 1986), the defendant kidnapped the victim; drove to a remote location to rape and rob her; let her out of the car and said goodbye; and, as she walked away, shot her once in the back of the head. The court found the evidence sufficient to disprove “Murray’s purported lack of intent to shoot the victim….” Id. at 1121.

27 Wilson v. State, 493 So. 2d 1019, 1021 (Fla. 1986).

28 “[M]anslaughter includes certain types of intentional killings.” Taylor v. State, 444 So. 2d 931, 933 (Fla. 1983).

29 Model Penal Code §5.01, Comment at 72 (Tent. Draft No. 10, 1960) (emphasis added).

30 Id.

31 Corkery, 25 P.2d at 258.

32 Model Penal Code §5.01, Comment at 72 (Tent. Draft No. 10, 1960).

33 In Goodman, the arson offense was not completed. But, in addition to the fact that the accomplice (Waters) did not voluntarily abandon his effort, Goodman, one might assume, never personally abandoned the intent to do the arson. Presumably, he did not know that Waters did not light the fire until some time later. Even if it could be said that Waters voluntarily abandoned his own intent to commit the crime, this wouldn’t necessarily mean that Goodman had an abandonment defense as well. Goodman “put in motion forces [ i.e., Waters] he was powerless to stop” and the failure of that “force” to finish committing the crime was not the result of a voluntary abandonment by Goodman.

34 Model Penal Code §5.01, Comment at 72 (Tent. Draft No. 10, 1960).

35 Id. (emphasis added).

36 Rollin Perkins, Perkins on Criminal Law 590 (2d ed. 1969) (emphasis added).

37 Wayne LaFave & Austin Scott, Handbook on Criminal Law, 451 (1972) (emphasis added) (footnotes omitted). These comments continue to appear in Professor LaFave’s treatise. 2 Substantive Criminal Law, §11.5(b)(2) (2d ed. 2003).

38 O’Shaughnessy, 269 P.3d at 1237 and n.4 (holding the evidence did not justify an instruction on the defense).

39 State v. Smith, 409 N.E.2d 1199, 1200 (Ind. Ct. App. 1980).

40 Id. at 1202 (emphasis added).

41 Ramirez v. State, 739 P.2d 1214, 1217 (Wy. 1987).

42 United States v. Collier, 36 M.J. 501, 511 (U.S.A.F.M.R. 1992).

43 State v. Morfitt, 956 P.2d 719, 728 (Kan. Ct. App. 1998).

44 Fla. Stat. §777.04(5) (2013).

Richard Sanders graduated from the University of Pennsylvania Law School in 1982. He handles criminal appeals for the 10th Circuit Public Defender’s Office.