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Offering to Commit Prostitution

Crimes for offering to commit prostitution are prosecuted under Florida Statute Section 796.07. Depending on the number of prior convictions, the crime can be classified as either a felony or a misdemeanor.

Law enforcement officers throughout Florida often set up elaborate sting operations to catch people who either offer money for sexual favors or offer sexual favors for money. The penalties are different depending on whether the person is accused of being a prostitute, a "john," or a pimp that helps facilitate the relationship or profits off of it. 

Attorney for Offering to Commit Prostitution in Florida

If you were charged with offering to commit prostitution, then contact an experienced criminal defense attorney at Sammis Law Firm.

Our attorneys represent clients charged with prosecution crimes throughout the greater Tampa Bay area including Tampa and Plant City in Hillsborough County, St. Petersburg and Clearwater in Pinellas County, Lakeland and Bartow in Polk County, Brooksville in Hernando County, Bradenton in Manatee County, FL.

Call (813) 250-0500 to discuss your case.


Penalties for Offering to Commit Prostitution

The crime can be classed as either a second-degree misdemeanor, a first-degree misdemeanor or a third-degree felony depending on the number of prior convictions.

  • First Offense - For a first time offender, a person who offers to commit or engage in prostitution, lewdness, or assignation commits a second-degree misdemeanor. A second-degree misdemeanor is punishable by up to 60 days in county jail and a $500 fine. ss. 775.082 and 775.083, F.S.; s. 796.07(4), F.S.;
  • Second Offense - A second offense is a first-degree misdemeanor, punishable by up to one year in county jail and a $1,000 fine. ss. 775.082 and 775.083, F.S.; and 
  • Third Offense - A third or subsequent offense is a third-degree felony, punishable by up to five years imprisonment and a $5,000 fine. ss. 775.082 and 775.083, F.S. 

The Florida Legislature recently amended Florida Statute Section 796.07(2)(e), to narrow the scope of who may be convicted of engaging in prostitution to persons 18 years of age and older. Thus, now minors cannot be arrested for offering, committing, or engaging in prostitution. This follows a national trend recognizing that minors cannot consent to prostitution and should be treated as victims. At the federal level, the federal Trafficking Victims Protection Act, acknowledges that prostituted minors are "victims" of sex trafficking. 22 U.S.C. § 7102(9)(A).

If the prosecutor can prove the two prior offenses, a person who is charged with a third or subsequent violation for offering to commit prosecution shall be offered admission to a pretrial intervention program or a substance abuse treatment program as provided in s. 948.08.


When Can an Offer to Commit Prostitution Be a Felony?

A third or subsequent offense for offering to commit prostitution can be charged as a third-degree felony. A third-degree felony is punishable by up to five years imprisonment and a $5,000 fine. ss. 775.082 and 775.083, F.S. The enhancements are often called the "habitual misdemeanant."

Keep in mind that the prosecutor must prove that the two prior convictions actually occurred and that sufficient procedural safeguards were followed when the plea was entered. There are several reasons why a prior conviction can not be used to enhance the current offense to a felony including:

  • the defendant was not represented by counsel at the plea or trial because, in the absence of a knowing and intelligent waiver of counsel, no person may be imprisoned for any offense;
  • an uncounseled conviction in which there was no waiver of counsel will not support a finding of guilt or an increased term of imprisonment on a subsequent conviction.

The United States Supreme Court has ruled that an uncounseled misdemeanor conviction cannot be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. In Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980), the Court relied on two prior decisions which held that an uncounseled conviction could not support a deprivation of liberty - Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979) and Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

The Court did not hold that all uncounseled convictions were per se invalid for purposes of imposing a sentence of imprisonment, only those which could not themselves have supported incarceration. 446 U.S. at 224-226, 100 S. Ct. at 1587, (Marshall, J., concurring specially).

In Baldasar's prior conviction occurred after a proceeding in which he was not only unrepresented by counsel, but "did not formally waive any right to counsel." Id. at 223, 100 S. Ct. at 1586. Therefore, if the prosecutor wants to use an uncounseled plea, the prosecutor must also show that the defendant judge's offer of counsel and signed a written waiver of her right to counsel showing that the prior conviction was accompanied by an intelligent, knowing, and voluntary waiver.

In State v. Kelly, 999 So. 2d 1029 (Fla. 2008), the court found that the waiver of defendant's state constitutional right to counsel in prior plea proceedings could not be implied, Instead, when the defendant showed prima facie evidence that he did not validly waive his state constitutional right to counsel in prior misdemeanor cases and the state failed to satisfy its burden of proving that defendant was either provided counsel or validly waived that right, that the state could not seek the applicable enhanced incarceration penalties based upon the prior uncounseled misdemeanor offense.

These cases recognize that the defendant had free-standing state constitutional right to appointed counsel in misdemeanor proceedings at issue and the state may not use an uncounselled conviction to increase a defendant's loss of liberty in the absence of a valid waiver of counsel.

Also, if the defendant entered the plea after the trial judge provided a written pretrial certification that the defendant will not be imprisoned for the charged offense, then the prior offense cannot be used to enhance the imprisonment the defendant faces after a subsequent conviction.

If reliance for enhancement on the prior convictions is not allowed, it will probably result in the case being reduced to a misdemeanor. In a felony case, the court need not necessarily transfer the cause to county court. The circuit court retains jurisdiction to proceed on the misdemeanor case. On the other hand, the court has the discretion to transfer the case to county court by divesting itself of jurisdiction since the county court has concurrent jurisdiction.


Elements of Offering to Commit Prostitution

Florida Statute Section 796.07(2)(e) provides that “[i]t is unlawful . . . to offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.” Under the plain language of the statute, the state can prove the crime by either proving the defendant offered to commit prostitution or committed prostitution or engaged in prostitution.

To prove the crime of offering to commit prostitution, the State must prove that the defendant offered to commit, committed, or engaged in prostitution beyond a reasonable doubt. Fla. Std. Jury Insr. (Crim.) 23.5.

In D.M. v. State, 712 So.2d 1204 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1497c], the court concluded that “[t]he word ‘or' is generally construed in the disjunctive when used in a statute or rule, and normally means that alternatives were intended.

The courts have found that offering to commit prostitution is one alternative way to prove the crime under Section 796.07(2)(e), and the trial correctly denied the defendant's motion for judgment of acquittal.

Under the Florida statute proscribing offering to commit prostitution, mere act of offering to engage in sexual intercourse for a consideration is a violation, and no overt act is required to complete the offense. Pauline v. Lee, 147 So.2d 359, 362 (Fla. 2d DCA 1962). Florida law does not require the prosecutor for the State of Florida to prove that the defendant provided consideration for the requested sexual conduct. Instead, the mere agreement to pay is sufficient.

In B.A.A. v. State, 333 So. 2d 552 (Fla. 3rd DCA 1976), reversed on other grounds, the court found that no overt act, to wit: sexual intercourse, is required to complete the offense of solicitation for prostitution and the mere act of solicitation is a violation of section 796.07, Florida Statute.


How is Offering to Commit Prostitution Proven in Florida

Prostitution under section 796.07(2)(e), Florida Statutes, states that it is unlawful to offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation. To prove the crime of offering to commit prostitution, the State must prove that the defendant offered to commit, committed, or engaged in prostitution beyond a reasonable doubt. Fla. Std. Jury Insr. (Crim.) 23.5.

Under Florida law, there is not necessarily a requirement that the State prove that the defendant provide consideration for the requested sexual conduct. The mere agreement to pay is sufficient. Under the statute proscribing offering to commit prostitution, mere act of offering to engage in sexual intercourse for a consideration is a violation, and no overt act is required to complete the offense. Pauline v. Lee, 147 So.2d 359, 362 (Fla. 2d DCA 1962). See also:B.A.A. v. State, 333 So. 2d 552 (Fla. 3rd DCA 1976) (No overt act, to wit: sexual intercourse, is required to complete the offense of solicitation for prostitution and the mere act of solicitation is a violation of section 796.07, Florida Statute) (reversed on other grounds).

In one case, the defendant's conviction was reversed on appeal because the State neglected to proffer any evidence of any exchange of money, or "any agreement" between the defendant and her companion to perform a sex act for money in violation of section 796.07(2)(e), Florida Statutes. Id., at 632.

Therefore, in these cases, the charge cannot be proven if there is clearly an agreement between the Defendant and the undercover officer to perform a sex act for money. If the State cannot prove that the Defendant initiated the conversation in which he offered for her to engage in prostitution, negotiated the terms of the illicit sexual conduct he desired, and agreed upon the terms, then it is possible for the Defendant to file a motion to dismiss the charges, and told the undercover officer that he would return once he went to the bank. The undisputed facts establish a prima facie case for the State, and should have led the trial court to deny the Sworn Motion to Dismiss.


Florida Prosecutions for "Offer to Commit Prostitution"

If you were arrested for offering to commit prostitution under Florida Statute Section 796.07, in Polk County, FL, then contact an experienced criminal defense attorney for cases prosecuted in the courthouse in Bartow. Call us to discuss the facts of the case, ways to avoid the typical penalties, and the most effective defenses to fight the criminal charges.

Learn more about how the undercover officers with the Polk County Sheriff's Office run prostitution sting operations Bartow and Polk County, FL.

Call (813) 250-0500 to discuss your case with an experienced criminal defense attorney at the Sammis Law Firm. Let us put our experience to work for you.


This article was last updated on Friday, October 20, 2017.

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