An Attempt to do a crime is a crime. A person who specifically intends to commit a crime and makes substantial steps forward in completing that crime, but fails is guilty of “Attempt”. For example, a criminal intends to burn his neighbor’s house down. The Criminal buys gas, douses the house with gas and then throws a lighted cloth at the house. Heavy winds and rain blows out the cloth before the house could ignite into flames. This criminal would be guilty of attempted arson. If the intended act is completed then the attempt would merge into one completed crime. In the mentioned example, if the winds and rain didn’t prevent the cloth from igniting the house, then the criminal would be charged with arson only and not attempted arson.
An Attempt crime is a “specific intent crime” even though the ultimate completed crime might only be considered a “general intent crime” Attempt is an intent to do a particular criminal act combined with acts that fall just short of the crime intended. A specific intent crime is intent to commit a criminal act not by negligence, recklessness or by general intent of uncertain conduct.
Substantial Steps / Acts Towards the Commission of Crime
Attempt requires a substantial act toward the perpetration of the crime and not mere “preparatory steps”
Examples of substantial steps: Lying in wait, searching and following the intended victim of the crime. Enticing a victim to go to a certain place where a crime will be committed upon him.
Taking out a life insurance policy on someone you intend to kill would probably be considered “preparatory” and not a substantial step.
Defenses to Attempts
Legal Impossibility is a Defense, i.e. that the intended crime is in fact not a crime e.g. Attempting to receive stolen goods, when in fact the goods were not stolen. However in Florida, the police are legally allowed to do this in sting operations. For more details see my section on “Dealing in Stolen property“.
Factual Impossibility is not a defense, e.g. defendant tries to Rob someone to find out the victim has no money.
Florida Supreme Court decision regarding “Attempted Battery on a LEO”: In Merritt v. State, 712 So.2d 384 (Fla.1998), the supreme court held that section 784.07 of the Florida Statutes, which enhances the punishment for committing assault, aggravated assault, battery and aggravated battery committed against law enforcement and other specified public officers, does not create new substantive offenses and, by its plain language, does not apply to “attempts” to commit the enumerated crimes. The court explained: The enhancement statute contains no enhancement or reclassification of penalties for the offense of attempted commission of the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses.
Recent Case Law Regarding “Attempts”
Attempted murder — Overt act toward commission of murder — Defendant’s hiring of an undercover detective to kill his wife, providing a down payment for the murder, and providing detective with photographs, addresses, and other information about wife constituted overt act sufficient to establish attempted first-degree murder — Trial court properly denied defendant’s motion for judgment of acquittal.
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