Third District Court of Appeal

State of Florida 

Opinion filed March 8, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0083

Lower Tribunal No. F22-6632

________________

Jose Alcazar,

Petitioner,

vs.

The State of Florida,

Respondent.

A Case of Original Jurisdiction – Habeas Corpus.

Law Offices of Jason T. Forman, PA, and Jason T. Forman and 

Dalianett Corrales (Fort Lauderdale), for petitioner.

Ashley Moody, Attorney General and Katryna Santa Cruz, Assistant 

Attorney General, for respondent.

Before EMAS, GORDO and BOKOR, JJ. 

BOKOR, J.
2

Jose Alcazar stands accused, via an amended information, of 

attempted first-degree murder after allegedly hiring an undercover officer to 

kill his ex-girlfriend’s then-husband. Alcazar petitions for habeas relief from 

pretrial detention, contending in pertinent part, that the acts allegedly 

committed amount to, at most, preparatory acts in a solicitation scheme, but 

fail to rise to the level of an overt act sufficient to ground a charge of 

attempted first-degree murder. The State argues that Alcazar’s alleged acts 

cross the line from mere preparation to an overt act well on the way to 

consummation of the crime of attempted first-degree murder. As explained 

below, we agree with the State and deny the petition.

Our sister court highlights the elements of a criminal attempt: 

Under Florida law, criminal attempt occurs when a defendant 

commits “any act toward the commission of [an offense 

prohibited by law], but fails in the perpetration or is intercepted or 

prevented in the execution thereof . . . .” § 777.04(1), Fla. Stat. 

(2009). To establish the crime of attempt, the State must prove 

the defendant intended to commit a crime, committed an overt 

act towards its commission, and failed to successfully complete 

the crime. See Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA 

2010). The overt act element differentiates criminal attempt from 

solicitation, the latter of which is completed when a person asks 

another to commit a crime with the intent that the other commit 

the crime. See State v. Johnson, 561 So. 2d 1321, 1323 (Fla. 

4th DCA 1990); see also § 777.04(2), Fla. Stat. (2009). “An overt 

act is one that manifests the pursuance of a criminal intent, going 

beyond mere preparation to the actual commencement of the 

crime.” Bist, 35 So. 3d at 941; see also Groneau v. State, 201 

So. 2d 599, 603 (Fla. 4th DCA 1967) (explaining for the overt act 

element to be established, “[t]here must be some appreciable 
3

fragment of the crime committed and it must be in such progress 

that it would be consummated unless interrupted by 

circumstances independent of the will of the attempter.”). 

“Drawing the distinction between a preparatory act and an overt 

act is often difficult and depends on the facts of each case.” Bist, 

35 So. 3d at 941.

Carlton v. State, 103 So. 3d 937, 939 (Fla. 5th DCA 2012). In Carlton, the 

defendant’s actions constituted an overt act sufficient to satisfy this test for 

attempted first-degree murder where the defendant approached the hitman 

(undercover officer) with the intent to murder the victim, hired the undercover 

officer, provided photographs, addresses, and personal information, made a 

down payment, and discussed an alibi. See id. at 941. 

The State presented testimony (or relied on testimony presented at a 

prior hearing) that Alcazar solicited a hitman (undercover officer), provided 

the hitman with the victim’s personal information, including a driver’s license, 

credit card number, and photograph, contacted and met with the hitman, 

provided $100 for surveillance, identified a location for the crime (the victim’s 

driveway), asked for the murder to be staged as a robbery gone wrong, and 

provided $400 as a down payment for the crime. Alcazar contends that the 

act wouldn’t be consummated without additional discussion and plans, and 

points us to Arias v. State, 593 So. 2d 260, 263 (Fla. 3d DCA 1992), in which 

this court reversed a conviction of attempted first-degree murder and
4

concluded that the defendant’s actions constituted mere preparation and 

lacked “overt acts nearing consummation of the crime.” 

In Arias, the defendant discussed a murder plot with co-defendants 

and gave one of them a bottle of Hycomine to give to the infant victim. See

id. However, the court explained that “[t]he plot to kill the child went no 

further,” the co-defendant hadn’t committed to doing anything, and neither 

the defendant or co-defendants took any additional steps toward planning or 

completing the crime. Id. Arias provides no succor for Alcazar.1 The 

1 The dissent notes that “[i]t does not matter whether this panel agrees 

with the holdings of Robinson or Arias.” We agree. While the dissent implies 

(or maybe explicitly claims) that the panel is overruling Arias sub silento, the 

reality is less dramatic. We disagree on the application of Arias to the facts 

of this case. The dissent encourages us to apply precedent to the facts of 

this case in the way it chooses, while ignoring that "[d]rawing the distinction 

between a preparatory act and an overt act is often difficult and depends on 

the facts of each case." Bist, 35 So. 3d at 941 (emphasis added). We find 

that the facts of this case differ from the facts of Arias. The acts here rise to 

the level of overt acts nearing consummation of the crime, therefore 

mandating denial of the petition. 

The dissent’s conclusory statement that Arias compels our granting of 

the petition because the scheme in Arias “comes much closer to the requisite 

overt act” lacks support in the record (but may be an inadvertent admission 

by the dissent that Arias should be revisited and clarified). That the scheme 

here involved greater detail and more overt acts on the way to commission 

of the crime should be obvious on its face. Here, we have multiple meetings 

or calls, first with an informant and then with the undercover officer “hitman,” 

an exchange of money (including both payment of money for surveillance 

and a down payment for the murder), formulation of a plan, provision of 

personal information, and even a directive that the hitman murder the victim

in his own driveway and make it look like a robbery. 
5

provision of the drug and request to murder the child in Arias is chilling, but 

other than the recipient taking possession of the poison before contacting 

the authorities, Arias lacks the amount and character of overt acts leading to 

consummation present here. To apply Arias to these facts would all but 

prevent any charge of attempted murder in a solicitation context, outside of 

cases where the hitman pulls the trigger but misses the victim. 

Arias involved an initial meeting, the handing of the drug to be used to 

kill the infant, and nothing else in the way of planning or consummating the 

crime. Arias provides the standard for mere preparation without sufficient, 

overt acts.2 The evidence against Alcazar, on the other hand, mirrors almost 

Similarly, Robinson v. State, 263 So. 2d 595 (Fla. 3d DCA 1972), offers 

no support for Alcazar. The court in Robinson found the evidence insufficient 

to establish a necessary overt act for the crime of attempted grand larceny.

Id. at 596–97. Robinson and an undercover officer met up for what was 

supposed to be the purchase by the undercover officer of a stolen television. 

See id. at 596. While a sale price was discussed in a phone call, and the 

undercover officer met with Robinson, the crime progressed no further—

there was no agreement as to how the sale would be accomplished, and no 

exchange of money. Id. Robinson presents the quintessential case of mere 

planning and preparation with minimal overt acts. The dissent spends pages 

trying to fit this case into Robinson and Arias. Robinson had minimal overt 

acts while Arias had some. But Arias, importantly, demonstrated no indicia 

of movement beyond the planning phase. Conversely, Alcazar committed 

significant overt acts well on the way to consummation of the crime, as 

explained throughout this opinion, and but for the fact that the hitman was an 

undercover officer, the act would have likely been consummated with no 

further preparation or action needed. 2 However, while the dissent insists the factual underpinnings of Arias 

provide as much or greater indicia of overt acts on the way to consummation 
6

exactly the facts of Carlton. “Had Carlton not hired an undercover detective,

he likely would have effectuated the murder of his ex-wife.” Carlton, 103 So. 

3d at 941. Similarly, had Alcazar not hired an undercover detective, he would 

likely have effectuated the murder of his ex-wife’s lover. Like Carlton, and 

unlike Arias, the State presented sufficient evidence from which the trial court 

could conclude the alleged scheme advanced from preparation to overt acts 

putting the murder-for-hire scheme in motion.3 See, e.g., Robinson, 263 So. 

2d at 596–97 (“The overt act must reach far enough towards the 

accomplishment of the desired result to amount to a commencement of the 

consummation.”); see also Groneau, 201 So. 2d at 603. 

as present here, a conclusion we reject, to the extent the en banc court or 

Florida Supreme Court agrees with the dissent, the remedy should be en 

banc or Florida Supreme Court review to clarify the threshold for an overt act 

in this context—and in the process, overrule or clarify Arias. 3 The dissent explains that “factual impossibility is not a legal defense in 

Florida . . . [but] the State’s effort to seek pretrial detention . . . under these 

circumstances, brings with it certain practical difficulties.” Under the facts of 

this case and applying the overt act requirement discussed in Arias and 

Robinson, we see no such difficulty. Florida law doesn’t permit the defense 

of factual impossibility, and here we have sufficient overt acts such that the 

murder scheme was well on its way to fruition but for factors outside of

Alzazar’s control. See, e.g., State v. Rios, 409 So. 2d 241, 243–44 (Fla. 3d 

DCA 1982) (“We further reject any suggestion that the defense of legal 

impossibility should bar any criminal attempt prosecution, where, as here, 

the crime which the defendant attempted was legally impossible to commit 

due to the fact that the subject property was not stolen. The defense of legal 

impossibility has never been adopted in Florida in any criminal attempt 

prosecution and is generally discredited by the overwhelming weight of 

authority in other jurisdictions.”). 
7

Petition denied. 

GORDO, J., concurs.
8

JOSE ALCAZAR V. STATE

3D23-83

EMAS, J., dissenting. 

I respectfully dissent because we are bound by our own precedent 

which, as applied to the instant case, compels this court to grant Alcazar’s 

petition for writ of habeas corpus. While the State has offered sufficient 

evidence to establish a reasonable probability that Alcazar committed the 

crime of solicitation to commit first-degree murder, it has failed to offer 

sufficient evidence to establish a substantial probability that Alcazar 

committed the crime of attempted first-degree murder. As a result, Alcazar 

cannot be held in pretrial detention and he is constitutionally entitled to a 

reasonable bond. 

This is the second petition for writ of habeas corpus filed by Alcazar, 

and some procedural history is therefore necessary to place the case in its 

proper context. For the limited purposes of this petition, the relevant facts are 

not in dispute: 

In April 2022, Jose Alcazar was initially charged with, inter alia, 

solicitation of first-degree murder. The State filed a motion for pretrial 

detention pursuant to section 907.041, Florida Statutes (2022), and Florida 

Rule of Criminal Procedure 3.132, contending Alcazar should be held without 
9

bond pursuant to section 907.041(4)(c)5., which authorizes the trial court to 

order pretrial detention if it finds that: 

1) the defendant is presently charged with a “dangerous 

crime”; 

2) there is a substantial probability that the defendant 

committed such crime; 

3) the factual circumstances of the crime indicate a disregard 

for the safety of the community; and

4) there are no conditions of release reasonably sufficient to 

protect the community from the risk of physical harm to 

persons. 

The term “dangerous crime” is expressly defined by section 

907.041(4)(a), which lists twenty-two individual crimes (such as homicide, 

kidnapping, robbery, sexual battery), designating each as a “dangerous 

crime.” 

The statute further provides that “[a]ttempting or conspiring to commit” 

any of the twenty-two enumerated offenses constitutes a “dangerous crime.” 

Importantly, however, solicitation to commit any of the enumerated offenses 

is not legislatively designated as a dangerous crime. Nevertheless, following 

a hearing, the trial court granted the State’s motion for pretrial detention 

concluding that solicitation of first-degree murder, while not included within 

the list set forth in the statute, qualified as a “dangerous crime,” and that the 

State had satisfied the remaining requirements for pretrial detention. 
10

In September 2022, Alcazar filed his first petition for writ of habeas 

corpus, challenging the trial court’s order on the ground that solicitation of 

first-degree murder is not a “dangerous crime” under section 907.041 and 

thus could not serve as a basis for pretrial detention. This court, relying on 

our holding in Hodges v. State, 327 So. 3d 923, 925 (Fla. 3d DCA 2021),

4

concluded that the trial court was without authority to order pretrial detention 

because “a dangerous crime can only be one that is enumerated in section 

907.041(4)(a).” Alcazar v. State, 349 So. 3d 930, 935 (Fla. 3d DCA 2022). 

This court further noted: 

While the Legislature explicitly included attempt and conspiracy 

in the “dangerous crimes” definition, it omitted solicitation. Based 

on the plain language of the statute, we find no basis to expand 

the list of enumerated “dangerous crimes” to cover a crime 

specifically excluded from the definition.

Id. 

We granted Alcazar’s petition and remanded to the trial court for further 

proceedings on the issue of pretrial release. On remand, the State amended 

the charging document, adding the charge of attempted first-degree 

murder—an offense enumerated as a “dangerous crime” under section 

4 As this court noted in Alcazar I, our decision in Hodges held “section 

907.041, Florida Statutes, contains an exhaustive list of those crimes 

deemed by the legislature sufficiently dangerous to demonstrate the accused 

poses a risk of harm to the community.” Alcazar v. State, 349 So. 3d 930, 

935 (Fla. 3d DCA 2022).
11

907.041(4)(a). After a hearing, the trial court granted the motion for pretrial 

detention upon the conclusion that the State established a substantial 

probability that Alcazar committed the crime of attempted first-degree 

murder. Alcazar has now filed a second petition for writ of habeas corpus, 

this time challenging the sufficiency of the State’s evidence to establish the 

crime of attempted first-degree murder. 

I note this is an alleged “murder for hire” case. The allegation is that 

Alcazar (a corrections officer) told an inmate there was an individual he 

wanted to have killed. That individual is the husband of Alcazar’s girlfriend.

The inmate relayed this information to law enforcement, and was instructed 

by law enforcement to tell Alcazar that he (the inmate) had a nephew who 

could take care of this. A meeting was scheduled between the “nephew” (in 

reality, an undercover officer) and Alcazar. There were two meetings, 

portions of which were recorded by video, audio or both. 

Accepting the majority’s statement of salient evidence in support of the 

charge, the State’s ostensible support for the offense of attempted firstdegree murder was as follows: 

Alcazar solicited a hitman (undercover officer), provided the 

hitman with the victim’s personal information, including a driver’s

license, credit card number, and photograph, contacted and met 

with the hitman, provided $100 for surveillance, identified a 

location for the crime (the victim’s driveway), asked for the 
12

murder to be staged as a robbery gone wrong, and provided 

$400 as a down payment for the crime.

Maj. Op. at *3. 

This evidence, while certainly enough to establish a substantial 

probability that Alcazar committed solicitation of first-degree murder,5 is 

simply insufficient under our binding precedent to establish a substantial 

probability that Alcazar committed attempted first-degree murder. 

While both solicitation and attempt are inchoate offenses, they require 

different elements and acts.6 As our sister court has noted: 

With respect to the crime of solicitation, the great weight of 

American authority holds as a general proposition that mere 

criminal solicitation of another to commit a crime does not itself 

constitute an attempt. Perkins, Criminal Law, 505, 508 (1957). 

5 Section 777.04(2), Florida Statutes (2022) provides: 

A person who solicits another to commit an offense prohibited by 

law and in the course of such solicitation commands, 

encourages, hires, or requests another person to engage in 

specific conduct which would constitute such offense or an 

attempt to commit such offense commits the offense of criminal 

solicitation.

6 Conspicuously absent from this discussion is the inchoate offense of 

conspiracy, due to the fact that Alcazar was meeting with an undercover 

officer whom Alcazar believed would be the person committing the killing. 

As the Florida Supreme Court has held: “[W]here two or more persons 

conspire with another who is, unknown to them, a government agent acting 

in the line of duty, to commit an offense under an agreement and an intention 

that an essential ingredient of the offense is to be performed by, and only by, 

such government agent, such persons may not legally be convicted of a 

conspiracy.” King v. State, 104 So. 2d 730, 733 (Fla. 1958). 
13

This proposition has been particularly applied to a charge of 

attempted first degree murder where the facts established only 

solicitation to commit that offense. . . . 

***

The gist of criminal solicitation is enticement, whereas an attempt 

requires an intent to commit a specific crime, an overt act and 

failure to consummate that crime. This being true, to call 

solicitation an attempt is to delete the element of overt act. 

***

Solicitation may supply an element in the attempt concept, but 

in and of itself, solicitation does not satisfy all these elements. To 

merge attempts and solicitation bastardizes the concepts of each 

and breeds further confusion in an area already wrought with 

confusion.

Hutchinson v. State, 315 So. 2d 546, 548-49 (Fla. 2d DCA 1975) (citations 

omitted). 

This court’s own precedent compels the conclusion that Alcazar’s 

alleged actions did not constitute the crime of attempted first-degree murder. 

In Robinson v. State, 263 So. 2d 595, 596-97 (Fla. 3d DCA 1972), defendant 

was charged with attempted grand larceny.7 The acts engaged in by 

Robinson were summarized in the opinion as follows: 

7 In 1972, attempted larceny was a lesser included offense of larceny. In 

1977, the Florida Legislature amended the definition of larceny (theft), 

creating section 812.014 and providing that a person is guilty of theft if he 

obtains or uses “or endeavors to obtain or to use” the property of another 

with the requisite criminal intent. See Ch. 77-342, § 4, Laws of Florida. As 

a result, the crime of theft includes an attempt to commit theft, State v. Sykes, 
14

Charles S. Olesky, received a telephone call from an unknown 

person asking whether he wanted to purchase a stolen television 

set for four hundred dollars. Following the telephone call Olesky 

contacted the police who later kept the rendezvous established 

between Olesky and the caller. A police officer contacted the 

defendant at the meeting place and while the two men sat in an 

automobile the officer told defendant he had the money for the 

television set when in fact he only had five dollars in an envelope. 

Defendant stated the television set was nearby but he wanted 

the money first and when the officer refused, defendant said ‘No 

man, we don't do business that way’. Defendant then attempted 

to leave the vehicle but the officer placed him under arrest. 

Id. at 596.

Defendant was convicted of attempted grand larceny, and on appeal 

this court reversed, holding the evidence was insufficient to establish the 

overt act necessary for the crime of attempt:

An attempt to commit a crime involves the idea of an incompleted 

act as distinguished from the complete act necessary for the 

crime. The guiding principles necessary for an attempt were 

given in Gustine v. State, 86 Fla. 24, 97 So. 207 (1923):

There must be an intent to commit a crime coupled 

with an overt act apparently adopted to effect that 

intent, carried beyond mere preparation, but falling 

short of execution of the ultimate design.

The intent to commit a crime standing alone does not amount to 

an attempt nor is preparation alone sufficient. The overt act 

must reach far enough towards the accomplishment of the 

desired result to amount to a commencement of the 

consummation. There must be some appreciable fragment 

of the crime committed and it must be in such progress that 

434 So. 2d 326 (Fla. 1983) and there is no separate crime of attempted theft 

in Florida. See Harriman v. State, 174 So. 3d 1044 (Fla. 1st DCA 2015). 
15

it would be consummated unless interrupted by 

circumstances independent of the will of the attempter.

Id. at 596-97 (emphasis added). See also Groneau v. State, 201 So. 2d 599, 

603 (Fla 4th DCA 1967) (“Mere intention to commit a specific crime does not 

amount to an attempt. Preparation alone is not sufficient. Something more is 

required than mere menace, preparation or planning. The attempt is 

complete and punishable, when an act is done with intent to commit the 

crime, which is adapted to the perpetration of it, whether the purpose fails by 

reason of interruption, or for other extrinsic cause. The act must reach far 

enough towards the accomplishment of the desired result to amount to the 

commencement of the consummation. There must be some appreciable 

fragment of the crime committed and it must be in such progress that it would 

be consummated unless interrupted by circumstances independent of the 

will of the attempter. It is not, however, essential that the actor would have 

actually succeeded if he had followed the course of conduct upon which he 

had embarked”) (internal citations omitted). 

Twenty years later, in Arias v. State, 593 So. 2d 260 (Fla. 3d DCA 

1992), we reaffirmed our adherence to the analysis and holding in Robinson. 

In Arias, the defendant was accused and convicted of attempting to murder

an infant who was born with severe birth defects. Jean Arias was the 
16

Director of Nursing for a facility that provided medical care for children. Id. at 

261. The infant was the granddaughter of the physician who ran the facility.

Shortly after the child was born, she was placed under twenty-four-hour 

nursing supervision. Several nurses, including Arias, administered 

medication periodically to ease the infant’s pain and suffering. Id. At some 

point, Arias contacted a nurse, Judy Felsenstein, and told Felsenstein she 

needed someone to work during Easter weekend. Arias also confided to 

Felsenstein that she had a plan to kill the infant by administering an overdose 

of pain medication. Id. Felsenstein recommended that Arias call Etiole 

Means for this purpose. Means and Felsenstein had both worked with Arias 

in the past, and Arias had replaced Means at a prior place of employment.

Id. 

Arias, Felsenstein and Means met at a restaurant and discussed the 

plan to kill the infant. Arias told Means and Felsenstein that the infant’s

grandfather was aware of the plan and had approved of it. Id. at 262. Means 

testified at the trial that, after she applied for the temporary nursing position, 

Arias gave Means a bottle of medication, Hycomine, and was instructed to

administer it to the infant. A very small amount of that medication, if given to 

the child, would have proven fatal. Id. Means was given the bottle of 

Hycomine four days before the murder was to take place. After receiving the 
17

medication, however, Means became worried and called police to tell them 

about the murder plot. Before the plot was to be carried out, the police went 

to Arias' home and arrested her. Id.

Arias was convicted of attempted first-degree murder. She contended 

on appeal that the evidence was insufficient to establish the crime of 

attempted first-degree murder. We agreed and reversed, citing to Robinson

for the proposition that “[t]he overt act must reach far enough towards the 

accomplishment of the desired result to amount to a commencement of the 

consummation. There must be some appreciable fragment of the crime 

committed . . . .” Id. at 263 (citing Robinson, 263 So. 2d at 596–97). We held 

that “the acts committed by Arias were only those of preparation to commit 

the crime and did not rise to the level of overt acts nearing consummation of 

the crime. Therefore, the evidence was not sufficient to sustain a verdict of 

attempted first degree murder.” Id. 

The acts of Alcazar in the instant case, like the acts of the nursing 

director in Arias, while sufficient to support the charge of solicitation of firstdegree murder, are insufficient to support the charge of attempted firstdegree murder. In both cases, the State failed to meet the requirement of 

Robinson that “[t]he overt act must reach far enough towards the 

accomplishment of the desired result to amount to a commencement of the 
18

consummation. There must be some appreciable fragment of the crime 

committed. . . .” Robinson, 263 So. 2d at 596-97. 

In fact, one could make a viable argument that the conduct of Jean 

Arias—in particular, providing Means with the actual weapon to be used to 

murder the child four days later—comes closer to the requisite overt act than 

the conduct engaged in by Alcazar. By holding that Alcazar’s conduct 

establishes attempted first-degree murder, the majority opinion blurs the 

distinction between the discrete offenses of solicitation and attempt, 

inconsistent with our binding precedent. 

The majority posits that “[t]o apply Arias to these facts would all but

prevent any charge of attempted murder in a solicitation context, outside of

cases where the hitman pulls the trigger but misses the victim.” Maj. op. at 

*5. The majority’s postulation, while perhaps overstated, does make a good 

point. After all, it is the State which, in square-peg, round-hole fashion, has 

decided to charge attempted murder in a murder-for-hire scheme that could 

never have been consummated, given that the solicited “hitman” was an 

undercover officer. And though factual impossibility is not a legal defense in 

Florida,

8 the State’s effort to seek pretrial detention by adding a charge of 

attempted first-degree murder under these circumstances, brings with it 

8 See Gaskin v. State, 869 So. 2d 646 (Fla. 3d DCA 2004).
19

certain practical difficulties. Chief among them is the difficulty in establishing 

Alcazar engaged in an overt act that “must reach far enough towards the 

accomplishment of the [murder] to amount to a commencement of the 

consummation. There must be some appreciable fragment of the 

[murder] committed and it must be in such progress that it would be 

consummated unless interrupted by circumstances independent of the 

will of the attempter.” Arias, 593 So. 2d at 263 (quoting Robinson, 263 

So.2d at 596–97). The State has offered no overt act that meets the 

requirements of Arias and Robinson. Instead, the State’s evidence showed: 

Alcazar solicited a hitman (solicitation), provided the victim’s personal 

information including a driver’s license, credit card number, and 

photograph (mere preparation), contacted and met with the 

hitman/undercover officer (solicitation and mere preparation), provided 

$100 for surveillance (mere preparation), identified a location for the 

crime (mere preparation), asked for the murder to be staged as a 

robbery gone wrong (solicitation and mere preparation), and provided 

$400 as a down payment for the crime (solicitation).

It does not matter whether this panel agrees with the holding of 

Robinson or Arias. Further, it does not matter, were those cases being 

decided today on a clean slate, whether the outcomes might be different. 

And finally, it does not matter whether the Fifth District’s decision in Carlton 

v. State, 103 So. 3d 937 (Fla. 5th DCA 2012) arguably supports the majority 

decision. A panel of this district may not overrule, recede from, or decline to 
20

follow its own binding precedent. Our holdings in Robinson and Arias may 

be overruled only by the Florida Supreme Court or by this court in an en banc 

proceeding. See In re Rule 9.331, Determination of Causes by a Dist. Court 

of Appeal En Banc, 416 So. 2d 1127, 1128 (Fla. 1982) (observing that “a 

three-judge panel of a district court should not overrule or recede from a prior 

panel's ruling on an identical point of the law.” Instead, intra-district conflict 

should be resolved by an en banc decision of the court pursuant to rule 

9.331); Nat’l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., 347 So. 3d 63, 64 

(Fla. 3d DCA 2020) (“Unless the Florida Supreme Court overrules a prior 

panel's decision, a subsequent panel of this Court is not free to disregard, 

and must follow, precedent of the prior panel. See Bean v. Univ. of Miami, 

252 So. 3d 810, 821 (Fla. 3d DCA 2018). Only the Court, sitting en banc, 

may recede from a prior panel's decision. See State v. Washington, 114 So. 

3d 182, 188-89 (Fla. 3d DCA 2012)”). 

Our decisions in Robinson and Arias have not been overruled or 

receded from. Applying that precedent to the instant case, the State failed 

to make the necessary showing to establish a substantial probability that 

Alcazar committed attempted first-degree murder. As a result, the State’s 

motion for pretrial detention should have been denied and the trial court 

should have proceeded to set reasonable conditions of pretrial release. 
21

I would grant the petition for writ of habeas corpus, and therefore 

respectfully dissent from the majority’s opinion denying the petition.