Can Lack of a Criminal Record Prove Entrapment in Florida Sting Operations?

November 11, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s courts generally agree that although a lack of a criminal record is relevant in showing lack of predisposition to commit an offense, “post-inducement conduct” alone can establish that a defendant was predisposed to act unlawfully.

In Florida, entrapment can be a potent defense to criminal charges if someone was induced by law enforcement to act criminally. There are two types of entrapment defenses – objective (due process) entrapment and subjective (statutory) entrapment.

Objective entrapment occurs when law enforcement acts so egregiously, that prosecuting a defendant would fundamentally violate their due process rights under the Florida and U.S. Constitutions. Examples of objective entrapment may include:

• Law enforcement manufactures drugs at the police station to sell to people on the street while undercover, only to arrest people when they try to buy them (State v. Williams, 623 So.2d 462, 466 (Fla. 1993))
• Law enforcement sends child pornography through the mail to arrest someone for possessing it (Farley v. State, 848 So.2d 393, 397-98 (Fla. 4th DCA 2003))
• Law enforcement threatens to kill or seriously injure someone if they do not commit a crime, then arrests them for doing so

As objective entrapment is rarer and significantly harder to prove than subjective entrapment, this is not frequently argued. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). The more common entrapment defense in Florida is subjective (statutory) entrapment, under Munoz v. State, 629 So. 2d 90 (Fla. 1993) and Fla. Stat. 777.201.

If a defendant’s charges resulted from them being ensnared in a law enforcement sting operation, they may file a pretrial motion to dismiss all charges against them on entrapment grounds. When evaluating whether someone was subjectively entrapped, courts perform a “two-pronged” test.

The first prong is evaluating whether the defendant was induced to commit the offense. Many think this simply means that law enforcement was involved in making the crime happen. But this is not true – inducement is technically defined as police conduct that risks getting even a person who is not “ready and willing” to act criminally, to act criminally.

Per Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013), any (or all) of the following law enforcement conduct can serve as the basis to establish inducement:

• Coaxing or cajoling the defendant to commit the underlying offense (e.g. “Come on, please do it…”
• Harassment, coercion, or impugning the character of the defendant (e.g. “You’re pathetic if you don’t do it…”)
• Promises of friendship or monetary reward (e.g. “I’ll give you $100 if you do it…”

If a subjective entrapment defense is raised by a defendant (either in the form of a pretrial motion to dismiss, at trial itself, or both), they must prove by a preponderance (majority) of the evidence that they were improperly induced to commit the offense. Again, law enforcement must engage in prohibited tactics – simply running a sting operation is insufficient to show inducement.

If a defendant does prove they were induced, the next determination to be made is whether they were predisposed to commit the crime. The State must establish that someone was “ready and willing, without persuasion” to act unlawfully beyond a reasonable doubt. If the State fails to do so, the charges must be dismissed (or the defendant must be found not guilty at trial).

One of the most common questions when it comes to discussing “predisposition” in entrapment cases is whether the defendant’s lack of a criminal record can defeat a State allegation that the defendant was predisposed to commit the offense. 

The answer is complicated – but most Florida courts hold that even if a defendant does not have a record, the State still can prove predisposition by evaluating the defendant’s “post-inducement” conduct. In some (but not all) cases, a defendant may show readiness and willingness to commit a crime that is so clear, their lack of a criminal history cannot “save” an entrapment defense.

For example, in State v. Lopez-Garcia, 356 So. 3d 857 (Fla. 2d. DCA 2022), the 2nd District Court of Appeal (Greater Tampa area) evaluated an entrapment claim from a defendant who had no criminal history (Lopez-Garcia). Lopez-Garcia was arrested after he was ensnared in a police sting operation where officers posed as minors interested in sex. 

Lopez-Garcia was charged with solicitation of a minor (Fla. Stat. 847.0135(3)(a)) and traveling to meet a minor (Fla. Stat. 847.0135(4)(a)). He argued that his lack of a criminal history made it clear he was not predisposed to target minors. Lopez-Garcia also noted that he initially “swiped” on an adult dating profile that law enforcement later represented as a minor.

But the 2nd DCA ruled against Lopez-Garcia – finding that his predisposition to pursue minors was clear due to the sexual content of his messages with the undercover officer. Holding that the State “rebutted” Lopez-Garcia’s initial showing of lack of predisposition, the court wrote:

“Although Lopez-Garcia met his initial burden of establishing a lack of predisposition to commit the charged offenses by showing that he had never been investigated for or charged with such offenses in the past … [A]fter the burden shifted to the State, it rebutted his lack of predisposition by presenting evidence of Lopez-Garcia’s conduct during the text communications between himself and the undercover officer.”

According to Lopez-Garcia, a defendant claiming subjective entrapment may initially show a “lack of predisposition” by citing their lack of a criminal history. However, this is not always dispositive. If a defendant clearly shows a desire to engage in the underlying unlawful activity (without persuasion), their lack of a criminal record is not always a total defense.

Although Lopez-Garcia did not place too much emphasis on the lack of evidence the defendant had targeted minors in the past (e.g. no past charges/convictions), other rulings have weighed a lack of a criminal record more heavily in finding lack of predisposition to commit the charged crime.

For example, in DeMare v. State, 298 So. 3d 1269 (Fla. 2d. DCA 2020), Florida’s 2nd District Court of Appeal heavily weighed the defendant’s lack of a criminal record in finding that he was entrapped. Holding that DeMare was not predisposed and had been induced to commit the same crime as Lopez-Garcia (traveling to meet/solicitation of a minor), the 2nd DCA wrote:

“DeMare did not have a prior record of offenses against minors, and there was no evidence he was ever investigated for or engaged in such an offense. In fact, he responded to a profile of an eighteen-year-old woman in the adult section of Meetme.com. Thus, DeMare met his burden of presenting evidence of lack of predisposition.”

“The burden therefore shifted to the State to establish beyond a reasonable doubt that DeMare ‘was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense.’ Munoz, 629 So. 2d at 99 (emphasis added). The State failed to meet this burden.”

Like Lopez-Garcia, the DeMare court left the door open to the State proving predisposition in spite of his lack of a criminal history involving sex offenses. However, the 2nd DCA seemed to place this detail (no criminal record) at the forefront of their analysis in DeMare, in a way that they did not in Lopez-Garcia.

The 2nd DCA heard a similar case five years earlier in Rivera v. State, 180 So.3d 1195, 1196-97 (Fla. 2d. DCA 2015), also involving solicitation and traveling charges. There, the court reversed Rivera’s convictions because he was not allowed to testify about his lack of criminal history when arguing he was not predisposed to commit the offense. 

Though the Rivera court did not assess exactly how much weight the lack of a criminal history should be given when analyzing predisposition, the 2nd DCA concluded Rivera should’ve been able to introduce evidence of this at trial (he was barred from doing so by the trial judge). This is because, according to the 2nd DCA, this detail laid “at the heart” of his entrapment defense:

“Although Rivera did testify regarding his work history, the trial court denied defense counsel’s request that Rivera be permitted to testify that he had no prior criminal record. Defense counsel made this request repeatedly. On one occasion counsel argued that Rivera was allowed to introduce evidence regarding his lack of criminal record because lack of predisposition is an element of the entrapment defense. And counsel was correct that it went to ‘the heart of’ Rivera’s subjective entrapment defense-Rivera’s sole defense.”

A final case that is relevant on this issue is Blanco v. State, 218 So. 3d 939 (Fla. 3d. DCA 2017). In Blanco, the defendant (Blanco) was arrested on drug charges after a police sting. He argued that due to his lack of a criminal record, he could not have been proven to be “predisposed” to commit the underlying offenses.

The 3rd District Court of Appeal (Miami area) held that although Blanco was clearly induced to engage in the alleged drug sale and Blanco didn’t have a criminal history, his “post-inducement” conduct (use of “drug-trade jargon”) proved predisposition to the jury. The court wrote:

“[A] defendant’s use of drug-trade jargon at the post-inducement drug transaction can form the basis of a jury’s finding that the defendant was an experienced and willing drug dealer. Here, the jury heard Blanco’s testimony and the recording of his conversation with the undercover officer. It had the opportunity to determine whether he sounded like an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to commit the crime. It is within the province of the jury to do so.”

So, how much of a role does a defendant’s lack of a criminal record play in defeating the State’s argument that they were predisposed to act unlawfully (and thus, not entrapped)? The answer is not so simple. However, the above cases allow us to reach a few well-supported conclusions:

• When a defendant’s “post-inducement” conduct does not show clear readiness and willingness (without persuasion) to engage in the charged conduct, their lack of criminal history can be very important in establishing lack of predisposition, leading to dismissal of charges (DeMare)
• When a defendant’s “post-inducement” conduct shows deep familiarity with the “jargon” associated with the alleged offense(s) (e.g. selling drugs) or a desire to exploit minors sexually (for solicitation/traveling charges), lack of criminal history does not by itself establish lack of predisposition (Blanco, Lopez-Garcia)
• Lack of criminal history creates a “rebuttable presumption” of lack of predisposition (DeMare, Lopez-Garcia)
• The trial judge must permit the defendant to introduce evidence of their lack of a criminal record as part of their entrapment defense (to show lack of predisposition) – and failure to do so is reversible error (Rivera v. State, 180 So.3d 1195, 1196-97 (Fla. 2d. DCA 2015))

If someone is arrested and formally charged in Florida in a case and has a potential entrapment defense, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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