Attempt, Solicitation, and Conspiracy in Florida From An Expert’s Perspective

June 29, 2024 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s Laws on Attempt, Solicitation, and Conspiracy

In Florida, the offenses of attempt, solicitation, and conspiracy – sometimes referred to as “inchoate offenses” are charged under Florida Statutes Section 777.04. It reads, in part:

1. Attempt: A person who attempts to commit an offense prohibited by law 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, commits the offense of criminal attempt, ranked for purposes of sentencing as provided in subsection (4). Criminal attempt includes the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law.
2. Solicitation: A person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation, ranked for purposes of sentencing as provided in subsection (4).
3. Conspiracy: A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy, ranked for purposes of sentencing as provided in subsection (4).

Attempt

To prove an attempt to commit a crime under Florida Statutes Section 777.04, the State must establish:

• The defendant intended to commit the crime;
• The defendant committed an overt act toward the commission that went beyond mere preparation;
• The defendant failed to complete the crime

Important: The line between mere preparation and an overt act is a question of fact for the jury to decide. “Mere preparation” includes devising or arranging the means or measures necessary to commit the crime, while overt acts involve movement toward committing the crime after the mere preparation takes place.

There are two primary affirmative defenses to the crime of attempt, which include:

• If the defendant abandoned the attempt to commit the offense or otherwise prevented its commission
• If the defendant can prove by a preponderance of the evidence they abandoned the attempt or otherwise prevented the crime’s commission

The penalties for attempt largely depend on the underlying offense alleged to have been attempted. Under Florida law, attempts and other inchoate crimes are typically charged as one degree below the completed offense. For example, an attempted first-degree felony would typically be charged as a second-degree felony.

Criminal Solicitation

To find a defendant guilty for criminal solicitation under Florida Statutes Section 777.04, the State must prove:

1. The defendant solicited the person alleged to commit the offense, and that;
2. During the solicitation, the defendant commanded, hired, requested or encouraged the person to engage in specific conduct, which would constitute the commission of the solicited offense or an attempt to commit that offense.

Solicitation is defined as: “To ask earnestly or to try to induce another person to engage in specific conduct.”

An affirmative defense against solicitation charges can be used if the individual persuaded that person not to ultimately commit the offense, or otherwise prevented commission of the offense by completely and voluntarily renouncing their criminal purpose.

Like attempt, solicitation is typically charged as one degree below the solicited offense – solicitation for a first-degree felony is chargeable as a second-degree felony. 

Criminal Conspiracy

To prove the crime of conspiracy under Florida Statutes Section 777.04, the State must establish that:

• The intent of the defendant was that the offense of the object of the conspiracy would be committed and that;
• In order to carry out the intent, the defendant agreed, conspired, combined, or confederated with others to cause the criminal object of the conspiracy.

Important: The State does not have to prove necessary the conspiracy was expressed in any particular words or that words passed between the conspirators.

Like solicitation, an affirmative defense to conspiracy exists when the defendant persuaded the others in the conspiracy not to commit the conspired offense – or if they otherwise prevented the commission of the object of the conspiracy in a complete and voluntary renouncement of their criminal purpose. Conspiracies, like solicitation and attempt, are also typically charged as one degree below the conspired offense. 

What Do Florida Courts Say About Attempt, Solicitation, and Conspiracy

A corpus (body) of case law has developed on the issue of attempt, solicitation, and conspiracy. 

Generally, an attempt involves the performance of an overt act before what would be the successful commission of a crime. For example, shooting a firearm at someone with no legal justification or defense for doing so and missing would be attempted murder.

The definition of attempt can be traced back to Groneau v. State, 201 So.2d 599 (Fla 4th DCA 1967). In that case, the defendant was found guilty of attempted breaking and entering to commit larceny.

“…Where the crime remains unfinished and the defendant is charged with the attempt, two elements are essential: (1) a specific intent to commit the crime; and (2) an overt ineffectual act done towards its commission.” Groneau v. State, 201 So.2d 599 (Fla 4th DCA 1967).

Sometimes, that “overt act” that qualifies as an attempt can be non-physical in nature – even for physical crimes such as sexual battery. In Wiggins v. State, 816 So.2d 745 (Fla 4th DCA 2002), a defendant’s conviction for attempted lewd or lascivious (sexual) battery on a child under 16 was sustained, even though he had only passed the child a note. However, the note was extremely descriptive, detailing where and when he would do the act and offering money as inducement.

“Wiggins handed the child under 16 a note that not only manifested his intent to commit the act, but also contained detailed instructions on where and when the lewd act was to take place. Furthermore, along with the note, Wiggins included $10 that could reasonably be inferred to be a partial payment of the promised $50 or other inducement … Wiggins had made all the necessary arrangements for the lewd act to take place and there was direct movement toward the ultimate commission of the crime.” Wiggins v. State, 816 So.2d 745 (Fla 4th DCA 2002)

Solicitation is an even less demanding legal standard – someone only has to ask another person to commit a crime with the intent that person actually do so. The individual who is doing the soliciting does not need to take any other “overt steps” to actually commit the crime itself. Carlton v. State, 103 So.3d 937 (Fla 5th DCA 2012).

“To establish the crime of ‘attempt,’ the State must prove the defendant intended to commit a crime, committed an overt act towards its commission, and failed to successfully complete the crime; the overt act element differentiates criminal attempt from ‘solicitation,’ the latter of which is completed when a person asks another to commit a crime with the intent that the other commit the crime.” Carlton v. State, 103 So.3d 937 (Fla 5th DCA 2012)

One case demonstrating solicitation is State v. Waskin, 481 So.2d 492 (Fla DCA 3rd 1985). The case revolved around a husband who had a discussion with an undercover officer – who he believed to be a hit man – about murdering his ex-wife. Even though there was no concrete plan, timeline, or payment to the hitman by the defendant, the mere request or encouragement was enough to constitute solicitation under 777.04.

Conspiracy – unlike solicitation or attempt – must involve two or more individuals who sought to commit a criminal offense.

“In order to establish a conspiracy and [a person]’s participation in it, the state must prove an express or implied agreement or understanding between two or more persons to commit a criminal offense, and an intention to commit that offense.” Leigh v. State, 967 So.2d 1102 (Fla 4th DCA 2007).

Additionally, Florida courts have held that it does not need to be proven beyond a reasonable doubt by direct evidence that someone was a member of a conspiracy for them to be implicated under 777.04. Indirect evidence in the absence of a formal agreement can still be enough to charge someone with conspiracy to commit a crime. Schlicher v. State, 13 So.3d 515 (Fla 4th DCA 2009).

As the above demonstrates, Florida Statutes Section 777.04 is a sweeping statute. Being charged with crimes such as attempt, solicitation and conspiracy can have lifelong consequences. These may include many years of prison time and hefty fines. Don Pumphrey, Jr. is an experienced and aggressive criminal defense attorney with almost 25 years of experience fighting tirelessly for clients in Florida. (850) 681-7777

Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 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. has been qualified, accepted as an expert, and testified as an expert in the area of Criminal Defense Trial Work in Florida (State v. David Lee Green, Case No: 00-CF-016798, Hillsborough County, January 5th, 2011, Tampa, Florida; Honorable Susan Lee Sexton, Circuit Judge). 

Find a Criminal Defense Lawyer in Tallahassee, FL

As a former prosecutor, former state police officer and a life member of the Florida Association of Criminal Defense Lawyers, Don Pumphrey Jr. has observed that being arrested anywhere in Florida can be extremely stressful. Being charged and “formally charged” by information in Tallahassee or Leon County, Wakulla County, Jefferson County, Gadsden County, Quincy, Crawfordville, Florida State University, Florida State University Campus, Florida State University Student Code of Conduct, Tallahassee Community College, Florida A&M University, or facing first appearance in Leon County, can be life changing. Given the possibility of a lengthy jail or in some cases lengthy prison sentence and hefty financial penalties, it is important to contact an aggressive, trusted and experienced Tallahassee criminal defense attorney as soon as possible.

Don Pumphrey, Jr. and the 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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