What is the Abandonment Defense in Florida?

June 17, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, particularly in cases involving an attempted crime, the abandonment defense can sometimes be relied upon. The abandonment defense allows someone accused of attempting a crime to argue that they voluntarily abandoned their criminal intent before completing the crime, thereby negating their culpability for the offense.

This blog will discuss the abandonment defense in Florida under Fla. Stat. Section 777.04(5)(a), explore which criminal charges the abandonment defense is most commonly used to refute, and analyze case law on the issue of what constitutes abandonment.

Abandonment is most commonly relied upon as a defense in the following cases:

• Attempted robbery or attempted burglary
• Attempted sexual battery
• Attempted drug sales or delivery
• Solicitation or conspiracy (may not negate the charges, but reduces culpability at sentencing)
• Attempted second-degree murder (depending on the circumstances)

Abandonment is used in response to a charge of an inchoate offense (attempt, solicitation or conspiracy). An inchoate offense occurs when someone moves towards the commission of a crime, but the underlying offense is not completed. Fla. Stat. Section 777.04 defines attempt as when a defendant acts “toward the commission of [an] offense, but fails in the perpetration or is intercepted or prevented in the execution thereof.”

Under Florida law, abandonment is not typically recognized as a defense to solicitation or conspiracy. Once a conspiracy has been formed via agreement to commit an underlying offense and an overt act is done in furtherance of the conspiracy, abandonment is no longer a viable defense. In Florida, withdrawal from a conspiracy does not shield someone from criminal liability. 

The same is true of solicitation. Once a criminal solicitation has actually been made (not just thought of), abandonment cannot be successfully used as a defense to a solicitation charge. Examples of criminal solicitation may include:

• Someone requesting a minor have sex with them
• Someone commanding another to murder a potential victim on their behalf
• Someone texts another telling them to buy them drugs with the money they just sent them

Note: If the requests are not made with the specific intent of the criminal act being carried out (if the message or comment was a clear joke, for example), this is not criminal solicitation. 

Despite the difficulty of using the abandonment defense in the event someone is charged with criminal solicitation or conspiracy, it is a much more viable defense if an attempt charge is brought. This is because in some cases, a defendant may move towards completing an offense – before voluntarily deciding not to commit the underlying crime.

Under Section 777.04, abandonment must be voluntary. In other words, the defendant must not decide to abandon the underlying crime simply because factors outside of their control made the crime too difficult (or impossible) to commit. The following examples constitute voluntary abandonment in Florida:

• The defendant sneaks into a home intending to steal. He feels guilty and leaves without stealing anything, and nobody discovers he was there. 
• The defendant meets an accomplice to rob a gas station, but while walking towards the door, says “I don’t want to do this” and leaves. The robbery is not attempted as a result.
• A man brings a gun to confront someone over a drug debt. But when he sees the man with a child, he changes his mind and walks away. He does not make threats or display the weapon.

In sharp contrast to voluntary abandonment, the following facts will not support a successful abandonment defense:

• The defendant tries to open someone’s back door to burglarize a home. The lock won’t budge after multiple attempts to break in, and the would-be burglar walks away. The withdrawal was not due to voluntary renouncement, but due to logistical difficulty, undermining an abandonment defense.
• The defendant aims a gun at a victim to rob him, but flees when he sees a police car. As the withdrawal was motivated by fear of apprehension, a failure to complete the robbery does not constitute abandonment.

The abandonment defense is particularly potent in response to charges of robbery. Florida law (Rockmore v. State, 140 So.3d 979 (Fla. 2014)) defines robbery as the taking of money or other property with the intent to permanently or temporarily deprive the owner of it, accompanied by:

• The use of force
• Violence
• Assault
• Putting in fear

In the context of robbery, abandonment may be a viable defense if a defendant abandons stolen property before force was used. Rockmore found that for robbery to occur, prohibited force must be deployed by a defendant during the property’s taking, or while the property is in their possession to ensure its acquisition. If someone abandons stolen property before unlawful force is used, this precludes a robbery conviction as a matter of law.

For a defendant to successfully use the abandonment defense to an attempt charge, they must prove a complete and voluntary abandonment by a preponderance of the evidence. In other words, the majority of the evidence presented at trial must show that someone voluntarily and permanently renounced their desire to commit the offense before an act constituting an attempt occurred. 

Note: If someone takes a substantial step towards the commission of the underlying offense but regrets this immediately afterwards and decides not to engage in any further criminality, this is not abandonment.

Examples of when it is “too late” to claim abandonment may include the following scenarios:

• Someone enters a convenience store and points a gun at the clerk. Before the clerk can react, the would-be robber has second thoughts and runs away. As a substantial step (threatening the clerk with a firearm) was already taken, abandonment cannot be relied upon successfully as a defense to attempted robbery.
• Someone breaks into a house through a window, intending to steal items from inside. Upon hearing noises within the residence, the person flees before taking anything. This is still attempted burglary, as the abandonment was due to external factors and a substantial step was taken towards commission of burglary. 
• Someone gets on top of a non-consenting adult and begins to forcibly undress them with the intent of committing sexual battery, then changes their mind after hearing the person cry and say “no.” As the act was already underway, this does not constitute abandonment, and may be charged as attempted sexual battery.

In sum, abandonment is an affirmative defense in Florida that allows a defendant to argue they voluntarily abandoned their criminal intent and actions before completing a crime – thereby negating the defendant’s culpability. 

Abandonment must be proven by the defense at trial by a preponderance (majority) of the evidence. Harriman v. State, 174 So.3d 1044 (Fla. 1st DCA 2015) An abandonment defense is typically used in response to charges such as attempted robbery and attempted burglary. 

For abandonment to be legally valid, it must be complete and voluntary. The abandonment defense will not succeed if only external conditions prevent the completion of the crime. Moreover, the defendant must have given up completely on committing the crime – the abandonment must not have been temporary.

If someone is arrested and formally charged in Florida and wishes to rely upon an abandonment defense, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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