Inchoate Offenses in Florida Criminal Law

No crime can be committed by thought alone. Mere thoughts must be distinguished from speech acts and/or physical acts, say criminal courts in the United States. Without the distinction between the two-step rule element of mens rea (mental state) and actus reus (act) in commission of a crime, it would be impossible to have knowledge of if a defendant premeditated the act. Both rule elements must be present for a complaint against a defendant to be substantially considered a crime. Perhaps the most complex of crimes classified as inchoate offenses are those committed by the act of speech. Perjury, false pretenses, and the inchoate crimes of conspiracy and solicitation are examples of inchoate offenses. Still, most courts look to the “fairness” of alleged criminal liability for inchoate offenses, requiring evidence of the commission of those crimes “beyond a reasonable doubt.”

The Definition of Mens Rea 

Like all criminal laws, almost without exception, mens rea must be present to sustain a conviction. According to the Modern Penal Code (MPC), the defendant must have exhibited one of the four (4) mental states: 1) Purposely; 2) Knowingly; 3) Recklessly; or 4) Negligently at the time the crime was commissioned. All crimes require a pre-target offense activity or “planned to culminate in the commission of a crime” [MPC 501.1c]. This latter stipulation includes reckless conduct (e.g., throwing rock from building).

Inchoate Offenses in Florida

The very nature of inchoate crimes as “attempt,” “agreement” or “solicitation” to commit a crime such as “conspiracy,” can extend a court proceeding where target offense(s) are difficult to examine without substantial and exacting evidence. Like most states, Florida Statutes, Criminal Procedures and Corrections Title XLVII incorporates the rules of the MPC within the state’s criminal statute. Commonly charged inchoate offenses in Florida are:Attempt to Commit Crime § 777.04(1), Fla. Statute.; Criminal Conspiracy § 777.04(3), Fla. Statute. and Criminal Solicitation § 777.04(2), Fla. Statute.


Review of inchoate offenses by a Florida court must establish if the violation is a “substantial step” toward the target offense in a criminal case. MPC 501.1c stipulates that the prosecutor must establish a substantial step toward the target offense to identify it as an “attempt.” The distance between intent and attempt is more closely identified as an inchoate offense in crimes involving speech acts (i.e. criminal threats). Defendants cannot be convicted for both Attempt and Target Offense. If a substantial crime cannot be found, attempt may be pursued.


The requirements for the crime of conspiracy include: 1) an agreement of two or more people to commission an unlawful act; and 2) an additional, minimum overt act in furtherance of the agreement. If no further stake is evidenced to be present in the defendant’s premeditation, conspiracy has not been commissioned. While circumstantial evidence is not typically permissible in the courtroom, the crime of conspiracy requires that “confession” be elicited from one or more defendants. Additional rule elements applied to analysis of the inchoate offense of conspiracy include:

  • Pinkerton Rule – Co-conspirators are liable not only for agreement, but all activity in furtherance of agreement;
  • Object of Offense – Most jurisdictions now require the object of the conspiracy to be a criminal felony offense;
  • Chain of Offense – a) Number of persons; and involving b) How many Agreements (series); and c) Acts.

Finally, MPC procedure allows that defendants alleged to have commissioned a crime of conspiracy can be subject to selective trial; whereby the state selects the jurisdiction where a trial takes place. Selective trials are generally located in a jurisdiction where at least one of the co-defendants is charged.


Convictions of defendants based on the crime of solicitation is rare and is broadly defined as “the requesting another to commit any offense.” Authorization is punishable to the same degree as the offense solicited. Solicitation is typically merged with the target crime, prosecuted under accomplice liability, and is a misdemeanor in most states.


Defenses to inchoate crimes tend rely on temporality, and oft shift liability. Inchoate offense cases are subject to a series of tests in court. The probable distance test and proximity test both measure the progression of a defendant’s mental state toward completion of the offense. Res ipsa loquitur (the thing speaks for itself) or unequivocality test is used to determine the purpose of the inchoate offense. If there is evidence of intent to abandon the act, an alleged inchoate offense defendant can find their status shifted to witness as result of discovery in a case.

According to MPC 505.02 courts can dismiss charges if the court finds both 1) Impossibility; and 2) Defendant presents no danger to the public. It is important to note that most juvenile defendants (under fourteen years of age) do not meet the requirements for mental state in Florida, and therefore are not found guilty of inchoate offenses due the inability to effectively form and execute thoughts associated with the specific crimes acts of attempt, conspiracy, and solicitation.

We Can Help You Today

If charged with an inchoate offense in Florida, a licensed attorney at law can assist in representing your case in court. Contact Skier Law Firm, P.A. in West Palm Beach for a consultation in an inchoate offense matter and for further assistance with your case.

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