Definition of Conspiracy

In Florida, conspiracy is defined as an agreement by two or more persons to commit a criminal offense, with the intent that the offense will actually be committed.

The crime of conspiracy is codified under Section 777.04(3), Florida Statutes, which provides:

A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy.

Required Proof

To prove the crime of conspiracy at trial, the prosecution must prove the following two elements beyond a reasonable doubt:

  1. The intent of the defendant was that the offense (drug trafficking or any other crime) would be committed; and
  2. In order to carry the intent, the defendant agreed, combined, or confederated with another person to cause the offense to be committed by either of them, or by one of them, or by some other person.

Agreement and Intent Required

To sustain a conviction for conspiracy, the prosecution must establish both the agreement and actual intent to commit a crime.  Rodriguez v. State, 719 So. 2d 1215 (Fla. 2d DCA 1998); Saint Louis v. State, 561 So. 2d 628 (Fla. 2d DCA 1990); Brown v. State, 967 So. 2d 440 (Fla. 4th DCA 2007).

Conspiracy is an Independent Offense

The essence of conspiracy is the agreement and the intent of the conspirators to act upon the agreement.  As such, conspiracy is a separate and distinct crime from the offense which the conspirators seek to carry out. Ashenoff v. State, 391 So. 2d 289 (Fla. 3d DCA 1980) (citing Swindle v. State, 254 So. 2d 811 (Fla. 2d DCA 1971).

Acts in Furtherance of Conspiracy

To constitute a conspiracy under Florida law, it is not necessary to show that the defendant did any act in furtherance of the offense conspired. The agreement and intent alone are sufficient for criminal liability.  Jimenez v. State, 715 So. 2d 1038, 1040 (Fla. 3d DCA 1998) (citing LaPolla v. State, 504 So. 2d 1353, 1357 (Fla. 4th DCA 1987)).

Defenses to Conspiracy

There are many legal and factual defenses available to contest a charge of conspiracy.  Some of the most common defenses are described below.

Lack of Proof of Agreement

Without competent proof of an agreement, a conspiracy conviction cannot be sustained.

Florida law does not require the prosecution to establish the agreement through “direct proof,” such as a writing or eyewitness testimony.  Perry v. State, 155 So. 3d 390, 391-92 (Fla. 1st DCA 2014). The evidence may be circumstantial, and inferred from the circumstances. Green v. State, 999 So. 2d 1098, 1099 (Fla. 5th DCA 2009); Harris v. State, 450 So. 2d 512, 513-14 (Fla. 4th DCA 1984).

Where the State relies upon circumstantial evidence, the proof presented at trial must be inconsistent with every reasonable hypothesis of innocence. McClain v. State, 709 So. 2d 136, 138 (Fla. 1st DCA 1998).

No Agreement to Commit the Same Offense

The agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense.

  • Source: Schlicher v. State, 13 So. 3d 515 (Fla. 4th DCA 2009); Green v. State, 999 So. 2d 1098, 1098 (Fla. 5th DCA 2009) (affirming a defendant’s conviction for conspiracy to purchase cocaine because the evidence established that the co-conspirators had a common purpose to commit the crime of purchase of cocaine).

Stated another way, a conspirator must intend and agree to a crime, which, if completed, satisfies all of the elements of the crime also contemplated by the other conspirator.  Salinas v. U.S., 522 U.S. 52 (1997); Doorbal v. State, 983 So. 2d 464 (Fla. 2008).

Mere Presence at the Scene

Mere presence at the scene of a criminal transaction is insufficient to establish a conspiracy.  Pennington v. State, 526 So. 2d 87 (Fla. 4th DCA 1987) (reversing conspiracy conviction where defendant was merely present at the scene and aided in its commission without knowing the nature of the contraband transferred).

Mere Aiding and Abetting

A conspiracy may not be inferred from aiding and abetting alone. Ashenoff v. State, 391 So. 2d 289 (Fla. 3d DCA 1980) (citing Boyd v. State, 389 So. 2d 642 (Fla. 2d DCA 1980)).

In Ashenoff, a defendant was one of three alleged conspirators present during discussions of an undercover purchase of 500 pounds of marijuana.  The defendant discussed marijuana generally (without mentioning money or details of the specific transaction), and also also assisted in selecting, weighing, or handling the marijuana upon delivery. Id.

On these facts, the Third District Court of Appeal reversed the defendant’s conspiracy conviction, stating:

Although proof of a conspiracy may be inferred from appropriate circumstances, and proof of a formal agreement is not necessary, a conspiracy may not be inferred from aiding and abetting alone. . . there is nothing in this record to support an agreement and an intention to commit the separate offense of conspiracy. Ashenoff, 391 So. 2d at 291.

Additional Sources: Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2007); Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA 1994); Quinonez v. State, 634 So. 2d 173, 174 (Fla. 2d DCA 1994).


Minimal Involvement Without Agreement

The elements of a conspiracy are not met where a defendant’s connection to a criminal transaction appears to have been minimal, and is not shown to be the product of a consensual undertaking. Rodriguez v. State, 643 So. 2d 111 (Fla. 2d DCA 1994) (citing Jimenez v. State, 535 So. 2d 343 (Fla. 2d DCA 1988)).

In Rodriguez, a defendant accompanied a known drug dealer to the site of a prearranged cocaine sale.  Upon arrest, the defendant admitted to knowing of the sale and intending to ride along with the dealer.   On these facts, the Fourth District Court of Appeal held that the elements of conspiracy were not satisfied, stating:

Although the record reveals that Aloma [the dealer] and the confidential informant planned this drug transaction, no evidence suggests that [the defendant] participated in its formulation or execution . . . Where, as here, a defendant’s link to the criminal enterprise appears to have been minimal, and does not emerge as the product of a consensual undertaking, the elements of a conspiracy are not satisfied.  Rodriguez, 643 So. 2d at 111.

A conspiracy conviction will be upheld, however, where a defendant’s involvement becomes more extensive, such as with repeated drug sales for the same supplier. Pallin v. State, 965 So. 2d 1226, 1227 (Fla. 1st DCA 2007).

Penalties for Conspiracy

The penalties available for criminal conspiracy are described in Section 777.04, Florida Statutes.  Under the law, a conspiracy crime is ranked one level below the offense severity ranking that would have been given to the object offense under Florida’s Criminal Punishment Code (Section 921.022, Florida Statutes).

For example, Sale or Delivery of Cocaine is classified as a second degree felony carrying a Level 5 Offense Severity Ranking under the Florida Criminal Punishment Code.  If a defendant is charged with Conspiracy to Sell or Deliver Cocaine, the offense will be assigned a Level 4 Offense Severity Ranking (one level below the object offense of Sale or Delivery).  The defendant would then be sentenced according to the primary offense point value given to a Level 4.

Contact an Attorney

Conspiracy is one of the most technical areas of practice in Florida criminal law, and no person should attempt to resolve their case without first consulting with an attorney.

If you have been accused of criminal conspiracy, contact  Hussein & Webber, PL for a free consultation.  Our attorneys represent clients in Jacksonville, Orlando, and the surrounding counties of northeast and central Florida.