Charged with an “Attempt” offense?
Have you or someone you care about been charged with committing an attempt offense like “attempted battery” or, “attempted theft”? In Illinois the addition of the word “attempted” to a charge changes:
- What the State has to prove; and,
- The potential consequences if the Defendant is found guilty.
What the State has to Prove
Normally, the state must prove a person guilty beyond a reasonable doubt. This means that the state must prove a person guilty beyond a reasonable doubt for each element of a crime. Crimes in Illinois are always set by statute in the Illinois Criminal Code.
When a person is charged with an attempted offense, the State must prove that the Defendant:
- Intended to commit the offense that they are charged with attempting; and,
- He/She did any act that constitutes a substantial step towards committing that offense.
The state may prove intent by using a person’s statements or actions show to that they intended to commit the crime they are charged with attempting. A “substantial step” is an action which moves a person closer to committing an offense. Prosecution must prove both intent and a substantial step towards committing a specific offense from the Illinois Criminal Code.
Defendant John Doe is charged with “attempted aggravated battery” in that “the Defendant, Mr. Doe, while present in the State of Illinois, without legal justification, and intending to cause great bodily harm or disfigurement to Jane Doe threw a vat of acid at Jane Doe’s body.” In this example the underlying criminal offense is aggravated battery in its (a)(1) form. The “substantial step” element of the offense could be proved by testimony that Mr. Doe threw acid at Jane Doe’s body but that he missed her – if he had hit her then the crime would no longer be an “attempt” but instead would be actual aggravated battery. The intent element could be proved by testimony that Mr. Doe had just threatened Ms. Doe before throwing the acid or that they had been fighting just before hand.
An attempted crime has a reduced sentence from a crime that has been actually committed. There is no such thing as an “attempted misdemeanor”. Felonies are the only crimes which may be charged as “attempted”. What this means is that if a misdemeanor crime is attempted then the attempt alone will not support a charge by the State’s Attorney. For felonies, an attempt charge usually reduces the class of the felony by one. For example, a Class X Felony becomes a Class 1 Felony, a Class 1 Felony becomes a Class 2 Felony, and a Class 2 Felony becomes a Class 3 Felony. But, class 3 and class 4 attempted felonies each become Class A Misdemeanors.
Using our example from above, Aggravated Battery in its (a)(1) form is a Class 3 Felony. Class 3 Felonies are punishable by 2-5 years in prison and a fine of up to $2,500.00 (for more information about felony and misdemeanor sentencing possibilities see our article on the subject.). A conviction of Attempted Aggravated Battery in its (a)(1) form reduces the underlying Class 3 Felony to a Class A Misdemeanor. Instead of being punishable by 2-5 years in prison and up to $25,000 in fines, the Defendant if convicted could be punished with up to a year in jail and $2,500 in fines.
Defending your Rights
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