JOSE ALCAZAR v. THE STATE OF FLORIDA

Citation: Not availableDocket: 23-0083

Court: District Court of Appeal of Florida; March 7, 2023; Florida; State Appellate Court

Original Court Document: View Document

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The Third District Court of Appeal of Florida issued an opinion on March 8, 2023, in case No. 3D23-0083, where Jose Alcazar petitions for habeas relief from pretrial detention related to charges of attempted first-degree murder. Alcazar is accused of hiring an undercover officer to kill his ex-girlfriend’s then-husband. He argues that his actions only reflect preparatory acts in a solicitation scheme, not sufficient overt acts to support the attempted murder charge. The State counters that Alcazar’s actions constitute overt acts nearing the crime's consummation.

Under Florida law, to establish a criminal attempt, the State must demonstrate the defendant's intent to commit a crime, an overt act toward its commission, and failure to complete the crime. Overt acts must manifest criminal intent beyond mere preparation. In Alcazar's case, evidence presented indicates he solicited the undercover officer, provided personal details about the victim, paid for surveillance, identified a crime location, and arranged for the murder to appear as a robbery, which the State claims satisfies the overt act requirement. Alcazar's defense cites a precedent (Arias v. State) where a conviction was reversed due to a lack of overt acts nearing consummation, but the court ultimately agreed with the State and denied Alcazar's petition.

In Arias, the defendant and co-defendants discussed a murder plot and the defendant provided a bottle of Hycomine to the co-defendant for use against an infant victim. However, the court determined that the plot did not progress beyond discussion, as the co-defendant did not commit to any action, and no further steps were taken toward the crime. This case does not support Alcazar’s position. The dissent suggests that the panel is implicitly overruling Arias but this is not the case; the disagreement centers on applying Arias to the current facts. The dissent's call for application of precedent overlooks the nuanced distinction between preparatory and overt acts, which varies by case.

In contrast to Arias, the facts here involve significant overt acts that indicate a progression toward consummation of the crime. Alcazar's actions included multiple communications with an informant and an undercover officer, financial transactions related to surveillance and a murder down payment, detailed planning, and explicit directives for the murder. Unlike Arias, where the recipient merely possessed the poison without significant planning, Alcazar's case shows extensive preparatory actions that justify denial of the petition.

The situation mirrors that in Carlton, where evidence suggested that had an undercover detective not been involved, the murder would likely have been carried out. This indicates that Alcazar's scheme transitioned from preparation to overt acts that initiated the murder-for-hire plot, meeting the requisite legal standard for overt acts. The dissent's assertion that factual impossibility does not apply in Florida law does not complicate the state’s ability to seek pretrial detention in this case, as sufficient overt acts were present, demonstrating that the murder scheme was progressing toward completion, albeit interrupted by external factors. The document calls for clarification of the overt act threshold and reconsideration of Arias if the en banc court or Florida Supreme Court aligns with the dissent.

The court rejected the defense of legal impossibility in criminal attempt prosecutions, affirming that this defense is not recognized in Florida and is largely discredited elsewhere. The petition for writ of habeas corpus by Jose Alcazar was denied, with the majority opinion stating that while there is reasonable evidence for solicitation to commit first-degree murder, there is insufficient evidence for attempted first-degree murder, thus denying pretrial detention. Alcazar's case involves procedural history: initially charged with solicitation in April 2022, the State sought his pretrial detention under Florida Statutes, asserting that solicitation amounted to a “dangerous crime.” The trial court agreed, despite the statute not designating solicitation as such. Alcazar's first petition for habeas corpus successfully challenged this, leading to a court ruling that solicitation does not qualify as a “dangerous crime.” The court referenced precedent that only offenses explicitly defined in the statute could justify pretrial detention. Subsequently, on remand, the State amended the charges to include attempted first-degree murder, which is classified as a “dangerous crime.”

The trial court granted pretrial detention for Alcazar, concluding that the State demonstrated substantial probability of his involvement in attempted first-degree murder. Alcazar, a corrections officer, allegedly solicited an inmate to arrange a murder for hire against the husband of his girlfriend. The inmate informed law enforcement, who then orchestrated meetings between Alcazar and an undercover officer posing as a hitman. Evidence included Alcazar providing the victim's personal details, paying $100 for surveillance, identifying a crime location, requesting the murder to appear as a robbery, and providing a $400 down payment. 

While this evidence supports a charge of solicitation of first-degree murder, it fails to establish a substantial probability of attempted first-degree murder under existing legal standards. The key distinction is that solicitation involves enticing another to commit a crime, whereas attempt requires a clear intention to commit the crime and an overt act that fails to complete it. Florida statutes clarify that solicitation does not equate to an attempt, and a conspiracy charge is not applicable since Alcazar believed he was dealing with an actual perpetrator rather than a government agent. Prior court rulings reinforce that solicitation alone lacks the necessary elements to qualify as an attempt. Thus, based on legal precedents, Alcazar's actions do not meet the criteria for attempted first-degree murder.

Robinson's actions in 1972 and 1977 were examined in the context of Florida's theft laws. In 1972, attempted larceny was classified as a lesser included offense of larceny. The Florida Legislature's 1977 amendment established section 812.014, defining theft to include attempts, which eliminated the separate offense of attempted theft in the state, as confirmed in State v. Sykes and Harriman v. State. The case involved Charles S. Olesky, who was approached by an unknown caller offering to sell a stolen television for $400. After informing the police, a meeting was arranged where an officer, posing as a buyer, encountered the defendant. The defendant demanded payment before showing the television, leading to his attempted exit from the vehicle, at which point he was arrested. The conviction for attempted grand larceny was reversed on appeal due to insufficient evidence of an overt act required for an attempt. Legal principles outlined in Gustine v. State clarified that an attempt to commit a crime necessitates both intent and an overt act that significantly progresses towards the crime, distinguishing it from mere preparation or intention. The analysis in Arias v. State reaffirmed these principles, involving a case where the defendant, a nursing director, faced charges related to the care of an infant. The excerpt emphasizes the necessity of an overt act that demonstrates an intention to commit a crime, which must be sufficiently advanced to be punishable.

Arias confided to Felsenstein about a plan to kill an infant using an overdose of pain medication and suggested contacting Etiole Means, who had previously worked with Arias. They met to discuss the plan, during which Arias claimed the infant’s grandfather approved of the murder. Means testified that Arias provided her with Hycomine, a medication that could be fatal in small doses, just four days before the intended murder. However, Means became concerned and reported the plot to the police, who subsequently arrested Arias before the act could be carried out. Arias was convicted of attempted first-degree murder but appealed, arguing insufficient evidence for the crime. The court agreed, referencing the precedent in Robinson, which requires that an overt act must significantly advance the crime towards completion. It concluded that Arias's actions were merely preparatory and did not constitute an attempt. The ruling emphasized that the same standard applied to Alcazar's conduct, which, while sufficient for solicitation of murder, did not meet the criteria for attempted murder. The majority opinion raised concerns about the implications of charging attempted murder in solicitation cases, especially when the "hitman" was an undercover officer. The State struggled to demonstrate any overt act by Alcazar that would satisfy the legal threshold for attempted murder as outlined in Arias and Robinson.

Alcazar solicited a hitman and engaged in several actions linked to the crime, including providing personal information about the victim, meeting with the undercover hitman, and offering money for surveillance, which constituted solicitation and mere preparation. The legal principles established in prior cases (Robinson and Arias) dictate that a three-judge panel cannot overrule or deviate from binding precedent without en banc review, unless the Florida Supreme Court intervenes. These precedents have not been overruled, and applying them to Alcazar's case reveals that the State did not demonstrate a substantial probability of attempted first-degree murder. Consequently, the motion for pretrial detention should have been denied, allowing for reasonable pretrial release conditions. The author dissents from the majority opinion that denied the petition for writ of habeas corpus.