Switch to ADA Accessible Website
Orlando Criminal Lawyer

What Is The “Independent Act” Defense?


Generally speaking, if two people conspire to commit a crime, they are both guilty of that crime, regardless of the specific role that each person may have played. But what if one person goes beyond the scope of the “agreement”? In other words, what if one conspirator decides to commit an additional crime that the other conspirator never consented to or recognized might happen?

Under Florida law, the conspirator who did not participate in the subsequent crime may have what is known as an “independent act” defense. Essentially, a defendant can argue to the jury that someone else committed (or attempted to commit) the charged crime and that (1) the defendant did not intent to commit or attempt that crime, (2) the defendant did not participate in that crime, and (3) the crime itself was outside of and not a reasonably foreseeable consequence of the crime they originally conspired to commit with other person.

Florida Appeals Court Reverses Third-Degree Murder Conviction

A recent decision from the Florida Second District Court of Appeal, Gary v. State, provides a good illustration of a case where the independent act defense may apply. Actually, the trial judge in this case refused to instruct the jury on this defense. The Second District subsequently held this was a legal error, and the defendant was therefore entitled to a new trial with the instruction.

Here is what happened. The defendant and another man (the “co-felon”) were smoking marijuana one night. They decided to purchase some additional marijuana from a known drug dealer. The defendant later testified they simply intended to buy drugs. But his co-felon then pulled out a gun and shot the dealer, killing him.

Prosecutors charged the defendant with murder. The prosecution’s theory was that the defendant and the co-felon actually planned to rob the drug dealer. More to the point, the co-felon’s shooting was a reasonably foreseeable consequence of the robbery. By this logic, the defendant was also guilty of murder.

As noted above, the trial judge would not allow the jury to consider an independent act defense. The jury ultimately convicted the defendant of third-degree murder with a firearm. (It acquitted him of first-degree murder.)

The problem, the Second District explained, was that the defendant presented some evidence–namely his own testimony–disputing the prosecution’s claim that this was a drug deal gone wrong rather than an attempted robbery. The defendant maintained he never agreed to rob or kill the dealer, and he did not even know his co-felon had a gun on him at the time. While the jury may not have believed this story, the Second District said it was still the jury’s call to make. The trial judge should not have deprived the defendant of the opportunity to have his defense considered.

Contact Orlando Criminal Defense Attorney Jose Baez Today

The defendant in this case faced 15 years in prison. A new trial could offer him a chance at freedom. Cases like this demonstrate the critical importance of working with an experienced Orlando drug crimes lawyer. Contact the Baez Law Firm today to schedule a free consultation with a member of our team.



  • Facebook
  • Twitter
  • LinkedIn

Miami Office

1200 Brickell Avenue, Suite 1410
Miami, FL 33131
Office: 305-999-5100
Fax: 305-999-5111

Orlando Office

250 N Orange Ave, Suite 750
Orlando, FL 32801
Office: 407-705-2626
Fax: 407-705-2625

Email Us

Fields Marked * Are required

DISCLAIMER: Completing and submitting this form or otherwise merely contacting The Baez Law Firm or any individual at the firm will not establish an attorney/client relationship. Our firm cannot represent you until we determine that there would be no conflict of interest and that we are otherwise able to accept representation of your case. Please do not send any information or documents until a formal attorney/client relationship has been established through an interview with an attorney and you have been given authorization in the form of an engagement letter with The Baez Law Firm. Any information or documents sent via this form or otherwise prior to your receipt of an engagement letter will not be treated as confidences, secrets, or protected information of any nature. Submitting information regarding your potential case will not bar The Baez Law Firm from representing or continuing to represent a person or entity whose interest are adverse to your in condition with your case.

protected by reCAPTCHA Privacy - Terms
Please review the highlighted fields. They are required.
DISCLAIMER: This website contains information about The Baez Law Firm that includes testimonial statements from persons who are familiar with the firm's services. The testimonials shown are not necessarily representative of every person's experience with us. Testimonials from every client are not provided. As no two situations or persons are identical, the facts and circumstances of your situation may differ from those for which testimonials are shown. This website also includes information about some of the past results that we have obtained for our clients. Not all results are provided, and the results shown are not necessarily representative of all results obtained by us. No two situation are exactly alike; every person's situation is unique and the outcome for each person depends on the individual facts.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
MileMark Media - Practice Growth Solutions

© 2015 - 2024 Baez Law Firm. All rights reserved.
This law firm website and legal marketing are managed by MileMark Media.

Contact Form Tab Contact Form Tab