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attyadvisor
attyadvisor, Attorney
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Experience:  29 Years of Criminal Law experience
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On Aug 1/2016 she was arrested after a drug deal setup. She

Customer Question

On Aug 1/2016 she was arrested after a drug deal setup. She called a guy she has previously known and inquired about purchasing a few of his prescriptiom pills. He told her that he had the pills she wanted and that he would be able to meet within a short amount of time. She arranged where to meet, which was just down the road from her house. She drove a 4wheeler to meet him but when she got there she refused to purchase the pills because she said they were fake. She never gave him money but he repeatedly insisted she take them anyways without a charge. After she departed from the man she was immediately stopped by 3 under cover cops, they questioned her where the pills were and stated they knew about the deal. She advised them that the man was trying to sell fake pills and that she refused to purchase anything abd she then gave them the few pills that the man inisisted she take. Which in fact were not narcotics. They searched the four-wheeler she was driving and was unable to find narcotics on her. They ceased her phone, then arrested her and she remains in jail with no bond. Initially the charges were attempt, drug cospiracy and VOP. Now the charge is soliciting and conspiracy to purchase narcotics. The drug officers report states that the dealer called them and reported that my sister was trying to buy drugs from him and where they agreed to meet. The gentleman has a extensive drug conviction history. My sister has no criminal history except the theft chargea. What can she legally be convicted of if she never bought the drugs?
Submitted: 1 year ago via Cornell Legal Info Institute.
Category: Criminal Law
Expert:  attyadvisor replied 1 year ago.

Welcome and thank you for your question. I will be the Attorney that will be assisting you.

Expert:  attyadvisor replied 1 year ago.

The gentleman was a trap set up by the police to catch people in the act of purchasing prescription drugs without prescription which is illegal. There is no question that she went to purchase these drugs, the fact that the pills may have been fake is secondary. The best defense would be entrapment. I am concerned that she does not have an attorney. Which county was she arrested in?

Customer: replied 1 year ago.
Madison county. And Yes I Definately believe she intended on purchasing narcotics.A little back story.....Last year she was hired on with Madison County Sheriff's Office to be a dispatcher. During that time is very short period within a couple months later she got got caught up with a boy and started using drugs. one specific guy she was getting drugs. she thought she was buying Molly it ended being flakka. undercover police guys had been are doing an investigation on him for a long time and they pulled him over one day but he flead the scene. They were unable to catch him but got his cell phone.they receive the search warrant for his phone and found where there was transactions between him and my sister . Immediately she was terminated and then interrogated by the sheriffs office drug team. They questiomed her and made her feel guilty when she made her feel like she woukd be arrwsted of she didnt tell them everything about thw guy.she admitted to everything and advised where his house was, what she seen while in his house, how much she would buy from him and also where he was currently hiding. Cops were able to send a officer to the claimed hoise anf he was arrested on the spot. After that my sister was advised she could go home and that she wasnt arrested. While at home one of the agents called her while they were raided his house and she advised them where things would be from what she could remember.two radios were confiscated from the dealer and found to beling to madison county EMS services. One radio didnt work.They then called her and said she needed to drive bavk uo to the police station for further questions. She admitted to stealing the radios and trading them to him for drugs. the cops thought they were Police radios and tried to get her on that as well. However they were not radios that could intercept any police frequencys at all. They arrested her on the spot and took her to jail. During the process they tried to insost prison time for her. She had no prios criminal hostory before this. She ended up woth house arrest and probation. in the end she didn't get what they wanted her to get so they were really upset and have been harassing her.This seems a lot like retaliation to me
Customer: replied 1 year ago.
Madison county florida.
Expert:  attyadvisor replied 1 year ago.

Thank you for the clarification. It does appear that law enforcement retaliation, which we all know goes on everyday.

You are asking me if she can be convicted for an incomplete or inchoate crime where the drugs were in fact fake.

These types of crimes generally end in pleas deals or the case could even be dropped depending on the quality of attorney she has on your side.

The answer is yes you can be convicted.

"When we think of criminal acts, most of the time we assume that the actor’s intentions have been carried out—the store was robbed, the check was forged. But some crimes consist of actions that fall short of the final act of commission. These crimes—attempts, conspiracy, and solicitation—are known as incomplete, or “inchoate” crimes.

Incomplete crimes fall somewhere in the middle of the “commit a crime” process, which consists of six steps:

  1. The actor gets the idea for the crime (killing the victim).
  2. The actor evaluates the idea, deciding whether to proceed.
  3. The actor decides to go forward with the idea.
  4. The actor prepares for the crime, by obtaining necessary weapons, for example.
  5. The actor begins the crime, and
  6. The actor finishes, or completes the crime.

(Jerome Hall, General Principles of the Criminal Law, 558-99 (2d ed. 1960).)

We don’t punish people for the first, second, or third steps, because we don’t criminalize having an idea and a decision alone; and we clearly we punish them for the sixth. But activity that happens in the stages in the middle, numbers four and five, is also punishable as an incomplete crime.

Attempts

An attempted crime is one that wasn’t finished, which failed to achieve completion for one of two reasons:

  • The defendant did everything she set out to do, but failed. For example, she decides to shoot the victim, buys the gun, follows the victim, shoots, but misses. This is known as a “complete attempt,” or
  • The defendant does some of the acts needed to finish the crime, but is prevented from succeeding or decides to quit. For instance, the defendant takes the steps noted above but changes her mind at the last minute, or is prevented from continuing by the intervention of a police officer. This is known as an “incomplete” attempt.

Can one “attempt” to do every crime?

A person can be convicted of attempting to commit only certain crimes—those that require “specific intent.” Specific intent describes the defendant’s state of mind, which is to achieve the result that the criminal statute prohibits. Specific intent crimes differ from general intent crimes, which require only the intent to complete the physical act. For example:

  • Murder is a specific intent crime because it requires the prosecutor to show that the defendant intended the victim to die.
  • Battery is a general intent crime, because it requires only that the prosecution prove that the defendant intentionally hit the victim, not that he wanted to cause specific injury or harm.

It’s not easy to tell the difference between specific and general intent crimes. One way is to look at the statute of the crime itself: Does the definition include a requirement that the actor intends the result? Under this test, it’s clear why “receiving stolen property” is a specific intent crime, because its definition includes receiving the property knowing that it is stolen.

What must the defendant do to constitute an “attempt?”

People must take a concrete, substantial step towards furthering their intent to break the law before they will be guilty of an attempt. This is an act of perpetration (Step Four, above), not mere preparation (Step Three). So, for example, purchasing the weapon, without more, won’t expose the actor to attempted murder, but aiming it towards the victim and firing will.

How are attempts punished?

Interestingly, the crime of attempt wasn’t even a crime until the late 18th century (before that, “a miss was as good as a mile”). After that, attempts were classified as misdemeanors, but today, almost all attempts to commit a felony are themselves felonies. Attempts to commit specific felonies are often punished at half the maximum allowed for the target crime; if the target is a capital crime or carries life in prison, the attempt will be punished for a specific term of years.

Defendants who successfully complete a crime have also, in the course of their acts, attempted the crime. Logically, they’ve committed an attempt and the resulting crime. They can be charged with both, and the jury can be given both verdicts to choose from, but defendants cannot be convicted of both. In legal lingo, the attempt “merges” with the concluded crime.

Conspiracy

The crime of conspiracy is another incomplete, or inchoate, crime. It’s an agreement, explicit or implied, among two or more people, to commit a criminal act. But it’s a very controversial crime, because its definition is so vague. Courts have struggled for years to differentiate mere ideas from agreements to break the law; there’s a real risk that people will be punished for what they say, not for what they do. Indeed, historically conspiracy laws have been used to suppress controversial activity, such as strikes and dissent against public policies.

Is a mere agreement sufficient for a conspiracy to be formed?

Historically, the state did not have to prove that the defendants did any act to further the goal of the agreement. But this led law enforcement to intervene prematurely, before anything dangerous had happened, and to target what turned out to be banter. Accordingly, modern laws require one step, however trivial, be taken by the actors toward furtherance of their goal. This is known as an “overt act,” and it need not be an attempt to further the conspiracy. For example, making a phone call pursuant to the agreement, or even attending a lawful meeting, may suffice. A single overt act taken by one member of the group suffices to prosecute every member, even members who join the conspiracy after the act has taken place.

How do prosecutors prove an agreement?

The essence of a conspiracy is a mutual agreement to commit an illegal act or series of such acts. Every member of the group need not agree to every detail of the arrangement, nor must every member agree to commit each element of the offense. It’s enough if each member agrees to commit or facilitate some of the acts that make up the target crime." http://criminal.lawyers.com/criminal-law-basics/incomplete-crimes-conspiracy-attempt-solicitation.html

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Prosecutors may establish an agreement with circumstantial evidence, from which juries can draw broad inferences as to a mutual plan. One way of identifying a conspiracy is to ask whether the resulting crime appeared to be “choreographed.” For example, imagine a car driven by Tom, in which Dick and Harry are passengers. Tom stops the car, Dick and Harry get out, leave the doors open, accost and rob the victim, jump back in the car, and Tom drives off. A jury could validly conclude that the robbery was planned by all three, who could be prosecuted for conspiracy to rob and robbery itself.

What is the punishment for conspiracy?

Unlike the crime of attempt, conspiracy does not merge into the completed target act. As shown just above, all three defendants face two charges each: conspiracy and robbery.

In a typical state statute, the punishment for conspiracy will parallel the punishment for the target crime, so that conspiring to commit a misdemeanor will be a misdemeanor; and conspiring to commit a felony will be a felony (though punished less severely than the target felony itself).

What are the defenses to conspiracy?

Defendants have offered several defenses to conspiracy charges, depending on the circumstances and the laws of their states. Here are a few of the common ones.

Abandoning the plan. Sometimes defendants change their minds and abandon the criminal plan short of accomplishing it. But a change of heart will not defeat a conspiracy conviction, because the crime is complete once the agreement is formed or, in some states, once an overt act has taken place. But if a conspirator withdraws from the plan (imagine that Dick gets out of the car but runs away), that person at least avoids liability for the completed crime.

Conspiring to commit a crime that requires the agreement of two people. Some crimes, such as adultery and bigamy, by definition require the willing cooperation of at least two people. Put another way, one person alone cannot commit these crimes, which also include dueling, selling contraband, and receiving a bribe. Many courts will not allow convictions for conspiring to commit them, but some will disallow a conspiracy conviction only when the target offense has in fact been accomplished or attempted. Interestingly, this rule disappears in some situations when more than two persons are involved in the conspiracy – the conspiracy and the target offense convictions are each allowed to stand.

Impossibility. Finally, defendants sometimes raise the issue of factual or legal impossibility as a defense to conspiracy. For example, are Jane and Carol guilty of conspiring to murder someone if the intended victim is already dead? Or, are they guilty of conspiring to steal trade secrets that turn out not to be trade secrets at all, or of conspiring to receive stolen property that isn’t really stolen? Most courts will not recognize these “impossibilities” as a defense to conspiracy.

Solicitation

Solicitation is another incomplete crime, consisting of inviting, requesting, commanding, hiring, or encouraging another person to commit a crime. Traditionally, one could solicit only felonies, but modern law applies to misdemeanors, too.

What must the defendant intend when soliciting a crime?

The prosecution will need to prove to the jury that the defendant intended the other person to do just what the defendant suggested. For example, a joking suggestion to harm someone, which is taken seriously by the listener, won’t rise to the crime of solicitation if the defendant can convince the jury that the words were meant in jest.

What must the defendant do to justify a conviction for solicitation?

The defendant must invite, request, and so on, but the actual target crime need not be committed, or even attempted, for the accusation of solicitation to stick. For example, if Able asks Bob to rob Victor, but Bob refuses, Able has still solicited Bob. However, if the request is never communicated, the crime may be attempted solicitation, as when Mary writes to Kay, asking Kay to perform an illegal act, but Kay never receives the letter: Here, Mary may be guilty only of attempted solicitation.

Solicitation is a very “incomplete” crime

Solicitation is perhaps the most incomplete of the three crimes discussed in this article. If the listener agrees to do the act, the two have formed a conspiracy; and if the act is accomplished or simply attempted, they become principals (responsible for the crime itself or the attempt). So, on the time-line of criminal thinking and behavior, it’s at the far end, where merely asking someone to do a criminal act, without regard to that person’s response, is criminal behavior. In a sense, a solicitation is an attempted conspiracy. http://criminal.lawyers.com/criminal-law-basics/incomplete-crimes-conspiracy-attempt-solicitation.html

I know this may seem slightly unfair, however, intent is the key. That is not to say that a good defense attorney could not get this dismissed.

Let me pull up the penalty she would she could face. I can also provide a link for attorneys in the area that provide FREE consultations.

Expert:  attyadvisor replied 1 year ago.

The no bond is very disturbing.

Customer: replied 1 year ago.
Will The Other Person Have To Testify As A Witness In court?
Customer: replied 1 year ago.
Regarding the bond, I was advised that her bond would be 5,000 dollars however they are witholding the her with no bond due to the VOP charge.
Expert:  attyadvisor replied 1 year ago.

Will The Other Person Have To Testify As A Witness In court? No doubt he would testify and he is no doubt a paid informant which goes to credibility so it would be interesting to know if there was a wire or recorded device involved. My concern would be any recordings.

Regarding the bond, I was advised that her bond would be 5,000 dollars however they are witholding the her with no bond due to the VOP charge. I realized that was probably the situation after I responded. Thank you for claryfying.

Let's start with the basics:

"According to Florida law, conspiracy is an agreement between two or more people to commit a criminal offense. The offense which is the object of the conspiracy does not have to be committed in order for defendants to be found guilty of conspiracy. For example, a defendant can be convicted of conspiracy to commit murder even if no murder occurred.

Florida prosecutors commonly charge a conspiracy to distribute drugs. This means defendants may be convicted and sent to prison for a conspiracy to sell drugs even if there never were any drugs sold or any drugs available to sell.

Elements of a conspiracy charge

The prosecution only has to prove two elements:

  1. There was an agreement between two or more people to commit a specific criminal offense.
  2. The parties fully intended to commit the underlying offense.

Florida state law does not require anything more. No overt act to further the conspiracy needs to be alleged. Two people can sit together and one may say, “Hey. Let’s go sell 20 kilos of cocaine.”

The other person responds, “Sure. Let’s do it.” The two people have entered into a conspiracy to sell 20 kilos of cocaine and can be prosecuted and convicted for his conspiracy even if there is never any existing cocaine and even if neither party ever makes any effort to sell any.

Penalties for a conspiracy conviction

The penalty for a conspiracy conviction in Florida depends on the penalty that would have been imposed if the offense which was the object of the conspiracy had been completed. For those crimes that carry an offense severity level of 3 to 10, the conspiracy is punished at one level below what would be imposed if for the actual offense had been committed. For example, the offense level for selling cocaine is punished as a Level 5 offense. The conspiracy to sell cocaine is punished as a Level 4 offense." http://www.destinattorneyjohngreene.com/criminal-conspiracy-charge-in-florida-what-does-it-mean

Expert:  attyadvisor replied 1 year ago.

This is overkill for a few pills.

This is the law that governs conspiracies in Florida:

Title XLVI
CRIMES

Chapter 777
PRINCIPAL; ACCESSORY; ATTEMPT; SOLICITATION; CONSPIRACY

View Entire Chapter

777.04 Attempts, solicitation, and conspiracy.—

(1) A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt, ranked for purposes of sentencing as provided in subsection (4). Criminal attempt includes the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law.

(2) A person who solicits another to commit an offense prohibited by law 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 offense of criminal solicitation, ranked for purposes of sentencing as provided in subsection (4).

(3) A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy, ranked for purposes of sentencing as provided in subsection (4).

(4)(a) Except as otherwise provided in ss. 104.091(2), 379.2431(1), 828.125(2), 849.25(4), 893.135(5), and 921.0022, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is ranked for purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944 one level below the ranking under s. 921.0022 or s. 921.0023 of the offense attempted, solicited, or conspired to. If the criminal attempt, criminal solicitation, or criminal conspiracy is of an offense ranked in level 1 or level 2 under s. 921.0022 or s. 921.0023, such offense is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) If the offense attempted, solicited, or conspired to is a capital felony, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) Except as otherwise provided in s. 893.135(5), if the offense attempted, solicited, or conspired to is a life felony or a felony of the first degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(d) Except as otherwise provided in s. 104.091(2), s. 379.2431(1), s. 828.125(2), or s. 849.25(4), if the offense attempted, solicited, or conspired to is a:

1. Felony of the second degree;

2. Burglary that is a felony of the third degree; or

3. Felony of the third degree ranked in level 3, 4, 5, 6, 7, 8, 9, or 10 under s. 921.0022 or s. 921.0023,

the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(e) Except as otherwise provided in s. 104.091(2), s. 379.2431(1), s. 849.25(4), or paragraph (d), if the offense attempted, solicited, or conspired to is a felony of the third degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(f) Except as otherwise provided in s. 104.091(2), if the offense attempted, solicited, or conspired to is a misdemeanor of the first or second degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(5) It is a defense to a charge of criminal attempt, criminal solicitation, or criminal conspiracy that, under circumstances manifesting a complete and voluntary renunciation of his or her criminal purpose, the defendant:

(a) Abandoned his or her attempt to commit the offense or otherwise prevented its commission;

(b) After soliciting another person to commit an offense, persuaded such other person not to do so or otherwise prevented commission of the offense; or

(c) After conspiring with one or more persons to commit an offense, persuaded such persons not to do so or otherwise prevented commission of the offense.

History.—s. 8, sub-ch. 11, ch. 1637, 1868; RS 2594; GS 3517; RGS 5403; CGL 7544; s. 701, ch. 71-136; s. 1, ch. 72-245; s. 1, ch. 73-142; s. 12, ch. 74-383; s. 5, ch. 75-298; s. 1, ch. 83-98; s. 2, ch. 86-50; s. 170, ch. 91-224; s. 4, ch. 93-406; s. 14, ch. 95-184; s. 1195, ch. 97-102; s. 17, ch. 97-194; s. 2, ch. 2002-214; s. 2, ch. 2003-59; s. 204, ch. 2008-247.

Note.—Former s. 776.04. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0777/Sections/0777.04.html

Customer: replied 1 year ago.
When I spoke to her she said that the police report stated "she agreed to purchase a 6 or 7 (5mg) adderall pills for $7 dollars a piece".... she said that was untrue because the pills they agreed on were not the milligram nor that price.
Expert:  attyadvisor replied 1 year ago.

When I spoke to her she said that the police report stated "she agreed to purchase a 6 or 7 (5mg) adderall pills for $7 dollars a piece".... she said that was untrue because the pills they agreed on were not the milligram nor that price.

I believe that they inflated the amount. I cannot tell you how many times client's have said the exact same thing.

Law enforcement is under a great deal of scrutiny now so she may get really lucky based on the information you provided.

This is a link for attorneys in that area that provide FREE consultations http://lawyers.findlaw.com/lawyer/firm/criminal-law/madison/florida

This is an example of how the courts view these cases http://caselaw.findlaw.com/fl-district-court-of-appeal/1015114.html

Expert:  attyadvisor replied 1 year ago.

Please do not hesitate to ask me ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you. If you would be kind enough to rate my service so I may receive credit for my work I would appreciate it.

The attorneys on the site to not receive credit for their time or work if the customer does not rate them positively. Thank you for your consideration.

Customer: replied 1 year ago.
Thank you for your time. I have one more question if possible.If the individual she agreed to purchase from never actually had any true intentions on selling narcotics nor did he have real narcotics to sell, is this still considered a conspiracy?It seems as if "attempt" and "solicit" are merged into conspiracy once an agreement is made to carry out the act. How can she be charged with solicit and conspiracy if it's for the same incomplete crime
Expert:  attyadvisor replied 1 year ago.

The intent of your sister is the key. She had the intent to purchase narcotics. She has a few factors in her favor, the police lied about the amount, they hold a grudge against her and the person selling has questionable credibility and had no drugs. Her intent unfortunately is clear. This is not the best case law enforcement could have on their side. It is lame.

Customer: replied 1 year ago.
Also this specific undercover drug task force team is currently under investigation for being accused of unlawful acts
Customer: replied 1 year ago.
Also in the report the drug to purchase, like I said is for adderall. She also has a doctors prescription for adderall usage daily
Expert:  attyadvisor replied 1 year ago.

Good that helps. I also understand your frustration because the alleged co-conspirator did not have actual illegal drugs. The intent of your sister is what they will go after.

Hopefully they will not succeed is this is not a great case on the side of law enforcement. I have seen heroin and cocaine charges get dropped or dismissed because of shoddy police work.

Also in the report the drug to purchase, like I said is for adderall. She also has a doctors prescription for adderall usage daily She needed to purchase that drug with a prescription from a pharmacy.

"Drug Schedules

Schedule II

Schedule II drugs, substances, or chemicals are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence. These drugs are also considered dangerous. Some examples of Schedule II drugs are:

Combination products with less than 15 milligrams of hydrocodone per dosage unit (Vicodin), cocaine, methamphetamine, methadone, hydromorphone (Dilaudid), meperidine (Demerol), oxycodone (OxyContin), fentanyl, Dexedrine Adderall, and Ritalin"

https://www.dea.gov/druginfo/ds.shtml

Expert:  attyadvisor replied 1 year ago.

Thank you for using JA. We appreciate your business. If you would be kind enough to rate my service so I may receive credit for my work I would appreciate it.

Expert:  attyadvisor replied 1 year ago.

Do you have any additional questions for me?

Customer: replied 1 year ago.
I apologize I got disconnected from the internet. Would u agree it would be worth getting a defense lawyer?
Expert:  attyadvisor replied 1 year ago.

I provided a link for criminal defense attorneys that provide free consultations. Would u agree it would be worth getting a defense lawyer? YES

This is a link for attorneys in that area that provide FREE consultations http://lawyers.findlaw.com/lawyer/firm/criminal-law/madison/florida

Thank you for using JA. We appreciate your business. If you would be kind enough to rate my service so I may receive credit for my work I would appreciate it.

Expert:  attyadvisor replied 1 year ago.

Please ignore the additional services request

THE ATTORNEYS ON THE SITE DO NOT RECEIVE CREDIT FOR THEIR WORK UNLESS THE CUSTOMER RATES THEIR SERVICE POSITIVELY. THANK YOU FOR YOUR CONSIDERATION.