Florida Court Clarifies What Constitutes an Overt Act in an Attempted Sex Crime

Under Florida law, you do not have to actually commit a crime to be convicted of an offense. Rather, a person can be found guilty for a criminal attempt if he or she takes any action toward the commission of the offense but is prevented from actually executing the crime.  While a defendant can be charged with an attempt to commit numerous crimes, attempt charges frequently arise in cases involving sex crimes.

The standard of what is necessary to prove an attempted sex crime was recently clarified by a Florida Court of Appeals in Berger v. State, a case involving a conviction for attempted sexual battery. The Berger ruling enlarged the definition of an overt act in cases involving attempted sex crimes, potentially exposing defendants to a higher risk of conviction. If you are charged with an attempted sex crime in St. Petersburg, it is important to retain an experienced St. Petersburg sex crime defense attorney who is adept at navigating the criminal court system and can assist you in preparing your defense.

Factual Background

Allegedly, the defendant engaged in online communication with an undercover police officer who purported to be a man trying to engage a person to teach his minor daughter about sex, as part of an operation to catch child predators. The defendant indicated specific sexual acts he intended to commit on the child and discussed the logistics of traveling to visit the child. The defendant then drove to what he believed to be the child’s residence and knocked on the door, after which he was arrested. He was subsequently charged with and convicted of attempt to commit sexual battery on a person under twelve years old. Defendant appealed his conviction on the grounds he did not commit an overt act towards the commission of the crime. On appeal, the court affirmed his conviction.

Attempted Crimes and Overt Acts

The Berger court noted that the Second District Court of Appeals, which is the appellate court for cases arising out of St. Petersburg, has stated that an attempted crime is comprised of a specific intent to commit a crime and an “overt act” beyond mere preparation towards completing the crime. The Second District Court of Appeals has further explained that while preparation consists of determining measures necessary to commit a crime, an overt act must come close enough to the desired result to count as commencing the crime. The court went on to say that the overt act does not have to be the last possible act toward committing the crime.

Court of Appeals Ruling

The Fifth District Court of Appeals recalled its ruling in State v. Duke, almost twenty years prior, in which it held that a defendant had not committed an overt act towards the commission of sexual battery, even though the defendant met a minor victim in a parking lot with the intent to commit sexual battery. The court noted that the Duke ruling had frequently been distinguished and at times rejected. The court was not persuaded by the Berger defendant’s argument that his conviction for attempted sexual battery should be overturned based on the standard set forth by the court in Duke should apply in the subject case, even though the cases were very similar. Rather, the court held that it decided Duke improperly. Specifically, the court stated that the Duke standard was inconsistent with the law regarding attempted crimes and the overt act standard for crimes other than sexual battery. As such, the court affirmed the defendant’s conviction.

Schedule a Consultation with a Knowledgeable St. Petersburg Sex Crime Defense Attorney

If you are accused of committing a sex crime in St. Petersburg, it is important to confer with a skilled sex crime defense attorney to discuss what defenses are available to the charges you face. William Hanlon of Hanlon Law is an attorney with the knowledge and experience needed to assist you in obtaining a successful legal outcome under the circumstances in your St. Petersburg sex-crime case. Contact our offices at 727-897-5413 or via the online form to set up a consultation.

More Blog Posts:

Florida Appeals Court Hears Sixth Amendment Sexual Battery Case October 25, 2018, St. Petersburg Sex Crimes Lawyer Blog

Florida Courts Discuss “Sexually Violent Predator” Designation October 9, 2018, St. Petersburg Sex Crimes Blog

Florida Man’s Sexual Battery Conviction Affirmed by Appeals Court September 27, 2018, St. Petersburg Sex Crimes Blog