Attempt, Solicitation, and Conspiracy Under Florida Law

August 26, 2021 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

The crimes of conspiracy, attempt and solicitation are codified in Florida Statute 777.04 which bars any individual from conspiring, attempting, or soliciting to commit a criminal act. While attempt can be charged while an individual is acting alone, conspiracy and solicitation require two or more individuals to be involved. These charges are often easier for the state to prove but are punished just as harshly as the actual offenses that could have been completed. That is why it is incredibly important to hire an experienced and knowledgeable criminal defense attorney.

What is Attempt?

Under Florida Statute 777.04(1), a criminal attempt occurs where an individual tries to commit a crime but fails. Technically, it must be an “act toward the commission” of the offense the individual was attempting to commit that ends in failure due to the individual or outside forcing intervening.

In order for the state to prove a defendant committed the crime of attempt, they must assert each element beyond a reasonable doubt:

1. The defendant did more than just think about the crime, engaging in any action that takes them one step closer to perpetrating the crime, and
2. The defendant would have been successful in their commission of the criminal act if not for their own failure, or something/one intervening to stop the defendant.

Florida Statute 7774.04(5)(a) contains a defense to the crime of attempt – abandonment. This defense could apply if the defendant abandoned their attempt to commit a criminal act or they tried to prevent the criminal act from happening.

What is Solicitation?

Under Florida Statute 777.04(2), criminal solicitation occurs when an individual solicits another to commit a criminal offense, and while soliciting, the individual commands, encourages, hires, or requests another individual to perform specific conduct which would constitute the criminal act or an attempt to commit the criminal act. Essentially, this crime can occur when an individual asks another person to help them commit a crime or commit a crime themselves.

In order for the state to prove a defendant committed the crime of solicitation, they must assert each element beyond a reasonable doubt:

1. The defendant solicits, or asks, another person to engage in a criminal act, and
2. While the soliciting is taking place, the defendant
   1. commands,
   2. encourages,
   3. hires, or
   4. requests

a different person to commit or attempt to commit the criminal act.

Florida Statute 777.04(5)(b) contains a defense for solicitation – dissuasion/prevention. This defense could apply if the defendant convinced the other individual to not commit the criminal act or prevented the other individual from perpetrating the criminal act.

What is Conspiracy?

Under Florida Statute 777.04, criminal conspiracy occurs when an individual agrees, conspires, combines, or confederates with another individual or multiple individual to commit any criminal act. This act passes beyond solicitation, or asking, and must include two individuals in agreeance to commit a criminal act. This agreement does not have to be oral, and a conviction can still occur even if only one party committed the crime that was the subject of the conspiracy.

In order for the state to prove a defendant committed the crime of conspiracy, they must assert each element beyond a reasonable doubt:

1. The defendant
   1. agreed,
   2. conspired,
   3. combined, or
   4. confederated

with another individual about committing a crime, and

2. The defendant and other individual agreed to commit the crime.

Florida Statute 777.04(5)(c) contains a defense for conspiracy – dissuasion or prevention. This defense could apply if the defendant persuaded the other individual against committing the crime or otherwise prevented the other person from committing the crime after the conspiracy took place.

Criminal Penalties for Attempt, Solicitation, and Conspiracy in Florida

Since these charges are based on the underlying offense, the severity of the penalty will vary depending on how serious the underlying offense is. Generally speaking, since these charges are one step below the actual commission of a crime, they will be punishable by one less degree than the underlying offense. Here are some examples:

• If the underlying offense is a capital felony, the attempt/solicitation/conspiracy charge will be a first-degree felony.
• If the underlying offense is a first-degree or life felony, the attempt/solicitation/conspiracy charge will be a second-degree felony.
• If the underlying offense is a second-degree felony, the attempt/solicitation/conspiracy charge will be a third-degree felony.
• If the underlying offense is a third-degree felony, the attempt/solicitation/conspiracy charge will be a first-degree misdemeanor.
• If the underlying offense is a first-degree misdemeanor, the attempt/solicitation/conspiracy charge will be a second-degree misdemeanor.

This pattern is subject to a few exceptions, such as:

• If the underlying offense is burglary, a third-degree felony, the attempt/solicitation/conspiracy charge will still be a third-degree felony.
• If the underlying offense is a third-degree felony ranked by the sentencing guidelines as a level 3 – 10, the attempt/solicitation/conspiracy charge will still be a third-degree felony.
• If the underlying offense is an act relating to the protection of marine turtles under the Marine Turtle Protection Act, the attempt/solicitation/conspiracy charge will be a third-degree felony.

Tallahassee Criminal Defense Lawyer

If you or a loved one has been charged with attempt, solicitation, or conspiracy to commit any criminal act, it is imperative you contact and retain an experienced and knowledgeable Tallahassee criminal defense attorney as soon as possible to explore your case. Don Pumphrey and the team at Pumphrey Law Firm have years of experience defending against a wide variety of criminal charges and can ensure you or a loved one receive the best defense possible. Contact Pumphrey Law Firm today by calling (850) 681-7777 or sending an online message where you or a loved one can have an open and free consultation with a defense attorney in our team.

This article was written by Gabi D’Esposito

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