What is an attempt?

Florida Statutes set out the elements of an attempt to include (1)  a specific intent to commit an offense; (2) an overt act done toward the commission of the offense that is beyond mere preparation; and (3) failure to successfully commit the offense.


Where this gets confusing is in determining what separates an overt act from mere preparation.  This distinction becomes important because without an overt act in furtherance of a crime, any act of preparation may only rise to the level of conspiracy or solicitation.  Florida’s courts have provided some inconsistent guidance in deciding what acts are overt and sufficient to justify a conviction for an attempt and what are merely preparatory.


For instance in 2014, the Second District Court of Appeal decided the case of Mizner v. State, 154 So.3d 391 (2d DCA 2014), ruling that an adult  travelling to met a minor at a restaurant to “get to know each other” before deciding whether or not to engage in sexual activities did not rise to the level of an overt act, and overturned the defendant’s conviction of attempted sexual battery.  However, in 2010 the Fifth District Court of Appeal decided that a man travelling to a home to meet with what he thought to be a minor for sex and bringing condoms to the rendezvous amounted to an overt act toward attempted lewd and lascivious molestation in Bist v. State, 35 So.2d 936 (5th DCA 2010).


Even if an overt action is taken towards the commission of a crime, Florida Statute Section 777.04 provides that it is a defense to the crimes of solicitation, conspiracy and attempt if a defendant (a) abandons his or her attempt to commit the offense or otherwise prevents its commission; (b) after soliciting another to commit a crime either persuades that person not to do so or prevents the offense; or (c) after conspiring with others to commit the offense, persuades such persons not to do so or otherwise prevents the offense.


Charges of attempted offenses are complicated to defend, because the State does not even need to prove that a crime was successfully committed.  The courts have been of little guidance with regards to what actions rise to the level of prepartation and what constitutes an overt act, addressing the issue on a case by case basis.  Abandonment is a viable defense to the crime of attempt, but requires an affirmative showing by the defense, often forcing a defendant to take the stand when he or she may have otherwise wished to remain silent.


When facing a charge of attempt, conspiracy or solicitation it is important to have the assistance of a competent, aggressive trial attorney.  We would be happy to discuss your case with you at any time.