St. Thomas Law Review
First Page
143
Document Type
Article
Abstract
Start with a simple syllogism: (1) The mental element of the Florida "offense of criminal attempt" is an "inten[t] to commit [an] offense"; (2) it is logically impossible to intend to do something that one does not intend to do, such as intend to cause an unintended harm; so therefore (3) "[t]here is no such criminal offense as an attempt to achieve an unintended [harm]," because it is logically impossible to intend, and thus to attempt, to commit an offense that has an element of causing-unintended-harm. Call this the attempt logic. Most courts accept this logic as to homicide offenses, concluding that one cannot attempt to commit a homicide offense unless one intends to kill another.' As one court put it, "An attempt, by nature, 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."' But in Brown, a sharply divided (4-3) Florida Supreme Court recognized an offense of attempted second-degree murder with no intent to- kill element, which occurs when one "commit[s] an act which would have resulted in the death of another except that someone prevented [one] from killing . .. or [one] failed to do so . . A few years later, a unanimous Florida Supreme Court recognized an attempted manslaughter offense with no intent-to-kill element, which also requires proof that one committed an act that would have resulted in death, except that someone prevented one from killing or one failed to do so.9 This article primarily addresses the logic of Brown, although essentially the same arguments apply to Williams. The Brown Court did not consider two arguments that would compel the conclusion that the Florida attempt statute cannot be applied to second degree murder. First, Brown conflicts with State v. Gray, 654 So. 2d 552 (Fla. 1995), and with Knight v. State, 28 So. 759 (Fla. 1900) and its progeny. Second, recognizing an offense of attempted second-degree murder with no intent-to-kill element causes serious problems, including the same problem that led the Gray Court to hold that Florida would no longer recognize an offense of attempted felony murder.
Recommended Citation
Richard Sanders,
Attempting the Unintended: The Problems with Recognizing an Attempted Homicide Offense That Does Not Require Proof of an Intent-to-Kill,
28
St. Thomas L. Rev.
143
(2016).
Available at:
https://scholarship.stu.edu/stlr/vol28/iss2/2