JAMES HAROLD ETHERIDGE, A/K/A BOOTY, AND LARRY ETHERIDGE, A/K/A GEORGE LARRY ETHERIDGE, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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James and Larry Etheridge appeal their convictions for conspiracy to traffic in cannabis. The court affirms, holding that one's withdrawal from criminal activity cannot serve as a defense to conspiracy once the conspiracy agreement is made and intent is formed, as conspiracy is complete upon agreement without requiring an overt act.
Once the intent to conspire is formed and an agreement is made, the conspiracy offense is complete. A person's subsequent withdrawal or refusal to further participate is insufficient to undercut a conspiracy conviction because conspiracy does not require an overt act. Only actual persuasion of confederates to abandon the enterprise or prevention of the offense constitutes a valid defense under the applicable statute.
[1] A criminal conspiracy is complete once the intent is formed and the agreement is made, without the necessity of an overt act.
[2] The defense of abandonment is not applicable to the crime of conspiracy under Florida law.
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Join FLexlaw to unlock all legal intelligence“once the intent is formed and the agreement made, the conspiracy is complete.”
Establishes that conspiracy liability attaches upon agreement and intent, without requiring an overt act or continued participation
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Join FLexlaw to unlock all legal intelligenceJames and Larry Etheridge were involved in a scheme to import contraband cannabis along with a drug enforcement agent who had infiltrated the conspira…
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CAMPBELL, Judge.
James and Larry Etheridge appeal their convictions for conspiring to traffic in cannabis. Having examined the three points raised by these appellants, we find that only one merits discussion. James Ether-idge contends that he withdrew from the conspiracy prior to arrest. He bases this contention on the following three separate affirmative acts. After earlier meetings between James, Larry, drug enforcement agents, and several other men involved in the importation scheme, he refused to discuss the planned importation of contraband with the agent who had infiltrated the conspiracy. Later, he told the agent that a co-conspirator, Hammond, conceived the plan alone. Finally, he had his phone number changed to prevent the agent from calling him.
Section 777.04(3), Florida Statutes (1981), defines conspiracy as follows:
Whoever shall agree, conspire, combine, or confederate with another person or persons to commit any offense commits the offense of criminal conspiracy ....
This statute follows the common law view of conspiracy since it does not require an overt act. Slaughter v. State, 301 So. 2d 762 (Fla.1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975). In addition, the Florida Standard Jury Instructions in Criminal Cases (2d ed. 1981), explicitly state that the defendant need not undertake any act in furtherance of the offense. See also King v. State, 104 So. 2d 730 (Fla. 1958); State v. Trafficante, 136 So. 2d 264 (Fla.2d DCA 1961); 16 Fla.Jur.2d Criminal Law § 1547 (1979). Therefore, once the intent is formed and the agreement made, the conspiracy is complete. James’s refusal to further participate in additional criminal activity may have been sufficient to prevent conviction for other substantive of fenses, but it is insufficient to undercut his conspiracy conviction here since he had already committed that offense.
Appellants’ trial counsel persuaded the trial judge to instruct the jury on the defense of abandonment by referring to section 777.04(5)(a). Section 777.04(5)(a) provides for the defense of abandonment only in regard to attempts, not conspiracies. Section 777.04 pertains to the three separate crimes of attempts, solicitation and conspiracy. Section 777.04(5) provides in subsection (a) for a defense to attempts, subsection (b) to solicitation and subsection (c) to conspiracies. Therefore, a person may escape liability for criminal conspiracy only under the circumstances enunciated in section 777.04(5)(c). The person relying on subsection (c) must show that he actually persuaded his confederates to abandon the enterprise or that he prevented the commission of the offense. James’s actions fall far short of this statutory requirement.
The trial court’s instruction on abandonment erroneously gave the jury the opportunity to consider Etheridge’s abandonment as a legitimate defense to conspiracy. The jury refused to acquit even with this erroneous instruction. Accordingly, we affirm the convictions and sentences of both appellants.
BOARDMAN, A. C. J., and GRIMES, J., concur.
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State v. Bauman, 425 So. 2d 32 (Fla. 4th DCA 1982)…he undisputed facts do not establish a prima facie case of guilt against the defendant. Thus, a proceeding under this rule is the equivalent of a civil summary judgment. State v. Evans, 394 So. 2d 1068 (Fla. 4th DCA 1981). . See Etheridge v. State, 415 So. 2d 864 (Fla. 2d DCA 1982). . We say again that facts are not established for consideration by the trial court or by appellate review when attorneys make representations in their arguments before the trial court. Facts are established by testimony, affidav…
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Beke v. State, 423 So. 2d 417 (Fla. 2d DCA 1982)…se. Ramirez v. State, 371 So. 2d 1063 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1201 (Fla.1980). Once the intent is formed and the agreement made, the conspiracy is complete. There is no requirement that there be an overt act. Etheridge v. State, 415 So. 2d 864 (Fla. 2d DCA 1982). The state recognizes there was no proof of a formal agreement between Beke and the other two men. Still, it argues this is not necessary if the conspiracy can be inferred from circumstantial evidence indicative of an overall pla…
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State v. Amilcar Jose Rodriguez-Jimenez and Aguedo Borrego-Estrada, 439 So. 2d 919 (Fla. 3d DCA 1983)…e. Second, since under Florida law it is unnecessary to allege overt acts when charging a conspiracy,3 § 777.04(3); Slaughter v. State, 301 So. 2d 762 (Fla.1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975); Etheridge v. State, 415 So. 2d 864 (Fla. 2d DCA 1982); State v. Burkett, 344 So. 2d 868 (Fla. 2d DCA 1977); State v. Trafficante, 136 So. 2d 264 (Fla. 2d DCA 1961), these allegations are superfluous and only serve to allow the defendants to more adequately prepare a defense to the ch…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- King v. State, 104 So. 2d 730 (Fla. 1957)
- State v. Trafficante, 136 So. 2d 264 (Fla. 2d DCA 1961)
- Bacon v. Texaco Inc., 420 U.S. 1005 (U.S. 1975)
- Orient Mid-East Lines, Inc. v. A Shipment of Rice Now or Lately on Bd. the Orient Transporter, 420 U.S. 1005 (U.S. 1975)
- Slaughter v. State, 301 So. 2d 762 (Fla. 1974)