Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Florida statute section 777.04 specifies the legislative enactments that became Florida criminal law regarding attempts, solicitation and conspiracy.

Basically, criminal attempt is exactly as it sounds: someone tried to commit a crime yet for some reason was unable to do so.

The law of solicitation involves getting someone else to commit a criminal offense within the state of Florida. It can be anything from encouragement to a simple request.

Conspiracy is an illegal agreement or confederation with another person or persons to commit any particular crime.

Once those definitions are given, much of the rest of the statutory subsection involves sentencing levels and other factors that determine where someone will score under the Florida punishment code pursuant to Florida statute section 9 to1. However, this particular statutory section contains an entire subsection, number five, which specifies defenses to the charges of criminal attempt, criminal solicitation, and criminal conspiracy.

Thus Florida statute section 777.04 (5) specifically states that it is a defense to charges under this statutory subsection if a defendant “under circumstances manifesting a complete voluntary renunciation of his or her criminal purpose“ and took legally sufficient measures to abandon any attempt, “persuaded such other person not to do so or otherwise prevented commission of the offense“ or after conspiring, persuaded or prevented the commission of the substantive offense.

These types of defenses can be intensely fact specific and that can cut two ways: in one case, you may have an abandonment so obvious that it results in a pretrial motion while in another case, the facts are disputed and have to be resolved by a jury trial.

Just this year, for the first time I’ve heard a judge ask a defendant during a plea colloquy about the “Trial penalty“. The unstated, yet implied threat behind the question was that the judge would not accept the negotiated agreement and sentencing is a potential trial penalty had factored into the decision-making of the defendant.

Frankly, this is absolutely ridiculous. If someone is charged with a conspiracy, attempt, or solicitation charge, but they have and extremely favorable plea offer such as a negotiated dismissal, they are going to take the deal.

It’s not like a County Court or circuit court judge can agree to a negotiated dismissal or diversion on behalf of the State attorney’s office. Any sentence they hand out if a defendant is convicted, would have to include probation and/or fine at a minimum.

So, asking about the trial penalty during a plea colloquy ignores the reality on the ground: if you lose a criminal jury trial for any of the charges listed above, there is no way on Earth you were going to get a lighter sentence then you would’ve gotten by taking a plea bargain negotiated by your criminal defense attorney.

Finally, let’s talk about Florida statute section 777.201 to finish out this segment of Florida criminal law’s examination of principle, accessory, attempt, solicitation, and conspiracy. This specific subsection deals solely with the issue of entrapment.

The statute subsection speaks strictly about a legal doctrine of law known as subjective entrapment. Basically, it is a defense to any crime that the person prosecuted if they are criminal defense attorney and legal team can prove “by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment.“

The final line in the paragraph states that this must be proven to the trier of fact. Technically, either a judge or a jury can be a trier of fact. But the reality is, this type of defense is a trial defense where all negotiated plea bargains are off and the defendant is relying upon the good judgment of 6 to 12 people from the local community or a single judge.

What is not discussed in this section of law is a different type of entrapment defense that criminal defense attorneys learn about early in their legal career. This is known as objective entrapment.

Since objective entrapment is a legal determination, this is decided by the trial court judge as a matter of law during a pretrial hearing. If the defense wins, the charge goes away. If the defense loses, their bargaining position with the prosecutor may or may not be affected.

Each case involving issues of entrapment is different, these types of cases are very fact specific, and this is an area you should discuss with the head of your legal team. Preferably, a highly experienced criminal defense attorney who is well aware of the law regarding both subjective and objective entrapment.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

For more information on Florida Statute Section 777, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling  today.

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