Inchoate (Incomplete) Crimes: Attempt, Solicitation & Conspiracy

Attempt, Solicitation, and Conspiracy are often referred to as Inchoate crimes ("inchoate" is another word for "incomplete"). In Florida, and in most jurisdictions throughout the United States, a person can be prosecuted, even if the contemplated crime is not fully committed, under one of these theories. This post examines each of the three inchoate crimes in more detail, including the elements of each, legally cognizable defenses, and sentencing implications.

  • Attempt

Under Florida law, a person who attempts to commit a criminal offense, and in doing so, does any act toward the commission of such offense, but ultimately fails in the perpetration thereof, commits the offense of criminal attempt.

  • Elements of Attempt

To prove the crime of criminal attempt, the state must establish that (1) the defendant did some act toward committing the underlying offense that went beyond just thinking or talking about it; and (2) the defendant would have committed the crime except that someone prevented him or her from doing so, or he or she failed. As with all criminal charges, the state is required to prove each element beyond a reasonable doubt.

  • Defenses

It is not an attempt to commit a crime if the defendant abandon his or her attempt, or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of his or her criminal purpose.

  • Sentencing Implications

In Florida, every felony offense is classified, by statute, as either a capital felony, life felony, first degree, second degree, or third degree felony. A capital felony is the most serious, and a third degree felony is the most benign. The degree of felony dictates the statutory maximum. Also, every felony is assigned an offense level (typically from 1 to 10) for sentencing guideline purposes. A level 10 offense is the most severe, and a level 1 is the most benign. The offense level dictates the person's minimum guideline score.

With a few narrow exceptions, an attempt is reclassified one degree lower than the completed crime, and the offense level is also reduced by one point. If, for example, the completed crime was a second degree felony, then an attempt to commit such crime would be deemed a third degree felony. In a practical sense, this would reduce the maximum permissible sentence from fifteen years to five. If the completed crime was a felony of the third degree, then an attempt to commit such crime would be deemed a misdemeanor.

A one point reduction in the offense level can also have a significant impact on the accused person's guideline score. For example, if the completed crime was a level seven offense, then an attempt to commit the crime would be deemed a level six offense, which could mean the difference between a mandatory prison sentence and a sentence that did not include time in the Florida state prison system (depending on the person's criminal history and whether any additional offenses had been charged).

  • Merger

An attempt merges into the completed crime. For example, a person cannot be convicted of both attempted burglary and burglary based on the same episode. A person can, however, be charged with, and convicted of, one substantive crime and an attempt to commit another.

  • Solicitation

A person who solicits another to commit a criminal offense, 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 crime of solicitation. For example, if A solicits B to Kill C, A is guilty of solicitation regardless of whether B kills C.

  • Elements of Solicitation

To prove the crime of solicitation, the state must prove the following two elements beyond a reasonable doubt: (1) the defendant solicited another to commit a crime; and (2) during the solicitation, the defendant commanded, encouraged, hired, or requested another to engage in specific conduct which would constitute the commission of the crime or an attempt to commit the crime.

  • Defenses

It is a defense to the charge of solicitation if the defendant, after soliciting another to commit the crime, persuaded that other person not to do so, or otherwise prevented commission of the offense.

  • Sentencing Implications

Like attempt, the crime of solicitation is ranked one degree and one offense level lower than the underlying (or completed) crime for purposes of sentencing in Florida.

  • Merger

If the person solicited agrees to commit the crime, then a conspiracy has been formed and the crime of solicitation merges into conspiracy.

  • Conspiracy

A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy.

  • Elements of Conspiracy

To prove the crime of criminal conspiracy, the state must prove the following two elements beyond a reasonable doubt: (1) the intent of the defendant was that the underlying (or completed) crime be committed; and (2) in order to carry out the intent, the defendant agreed, conspired, combined, or confederated with another person (or persons) to cause the underlying crime to be committed either by them, one of them, or by some other person.

In Florida, it is not necessary that the defendant do some act in furtherance of the offense conspired.

  • Defenses

It is a defense to the charge of criminal conspiracy that the defendant, after conspiring with one or more persons to commit the completed crime, persuaded the other person (pr persons) not to do so, or otherwise prevented the commission of the completed crime.

  • Sentencing Implications

Like the other two inchoate crimes, the crime of conspiracy is ranked one degree and one offense level lower than the completed crime.

  • Merger

Conspiracy does not merge with the completed crime. A person can, therefore, be convicted of both conspiracy to commit murder and murder, based on the same episode.

In Florida, you do not have to complete a criminal act to be prosecuted. Simply agreeing to commit a crime, persuading someone else to do it, or taking a shot at it yourself may be enough to get you there. While the inchoate crimes are not as severe as their underlying or completed counterparts, they can still result in some very hefty sentences. If you have been charged with an inchoate crime, it would behoove you to speak to a criminal defense attorney as soon as possible to discuss the particular circumstances and what defenses may be available to you.

Categories: Criminal Defense