Defendants Are Entitled To Entrapment Jury Instruction If It’s Argued: Major Florida Court

December 19, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 5th District Court of Appeal ruled that no matter how weak the evidence is to support an entrapment defense, a judge must instruct the jury on entrapment if the defendant produces any evidence it occurred.

In Florida, entrapment is a well-known defense that acts as a total bar to criminal convictions arising from it. Entrapment occurs when government agents impermissibly induce a defendant who is not predisposed to act criminally, to commit an illegal act. Entrapment is a violation of your due process rights.

Inducement for entrapment purposes occurs when government agents (e.g. police officers) use improper or illegal means to attempt to get someone to act unlawfully. Predisposition is said to exist if a defendant was “ready and willing, without persuasion” to commit the charged crime, and were simply given an opportunity to do so by law enforcement. For more, click here.

There are two types of entrapment under Florida law – objective and subjective entrapment. Objective entrapment occurs when government (e.g. law enforcement) conduct is so egregious, that pursuing a prosecution of the defendant is fundamentally unjust regardless of whether the defendant was “predisposed” to act. Examples of objective entrapment 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))
• A police task force 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))
• Undercover law enforcement threatens to kill or seriously injure someone if they do not commit a crime, then arrests them for doing so
• A law enforcement officer or informant enters a sexual relationship with the defendant to get them to act criminally (Madera v. State, 943 So.2d 960 (Fla. 4th DCA 2006))

Objective entrapment is quite rare, and significantly harder to prove than subjective entrapment because it requires particularly egregious misconduct (beyond running sting operations) by the police. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). As a result, subjective entrapment is more frequently argued.

Subjective entrapment is codified by Munoz v. State, 629 So. 2d 90 (Fla. 1993) and Fla. Stat. 777.201. It occurs when law enforcement uses impermissible inducement tactics to get someone who would not have otherwise committed the crime (not predisposed) to act unlawfully for the purpose of arresting them.

Inducement methods prohibited under Florida law may include any of the following (Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013)):

• Coaxing, cajoling, or harassment
• Promises of friendship with the defendant 
• Promises of monetary reward

Essentially, if police employ any or all of the above tactics with the intent of getting someone to break the law, this is considered subjective entrapment if the defendant was not predisposed (not ready and willing, without persuasion, to commit the crime). Munoz v. State, 629 So. 2d 90 (Fla. 1993)

Note: Entrapment may be raised as a defense in a pretrial motion to dismiss, at trial as a defense for the first time, or both. For more on this, click here.

If someone wishes to argue subjective entrapment occurred, they must prove by a preponderance (majority) of the evidence that law enforcement relied upon impermissible inducement tactics to get them to act criminally. Once this occurs, the burden shifts to the State to prove the defendant was predisposed to commit the underlying offense beyond a reasonable doubt.

Subjective entrapment is commonly argued as a defense when someone has been ensnared in a police sting operation. In certain cases, a subjective entrapment defense (and even an objective entrapment defense) may be quite strong due to the facts of the case.

But in other cases, there may be very few facts (aside from police activity facilitating the arrest of the defendant) supporting an entrapment defense. This raises a question – is a defendant who argues they were entrapped at trial still entitled to an entrapment jury instruction?

In other words, can a judge decide before the jury deliberates that there is not enough evidence to support the defendant’s entrapment defense – and thus, the jury is not allowed to consider if entrapment occurred? 

The answer to this question is no – the judge must instruct the jury on entrapment if there is any evidence (no matter how weak or improbable) to support this defense. Let’s examine a major case on this issue – Morgan v. State, 112 So.3d 122 (Fla. 5th DCA 2013) – and what it means for defendants arguing entrapment in Florida criminal cases.

KEY CASE: Morgan v. State, 112 So.3d 122 (Fla. 5th DCA 2013) 

In Morgan, the defendant (Morgan) was charged with four offenses – all of which were serious felonies:

• Traveling to meet a minor for sexual conduct (Fla. Stat. 847.0135(4)) 
• Using a computer device to lure a parent of a child to engage the child in sexual conduct (Fla. Stat. 847.0135(3))
• Attempted lewd or lascivious exhibition
• Attempted lewd battery 

The case arose from a Craigslist advertisement posted as part of a police sting operation. Morgan was convicted of attempted lewd or lascivious exhibition at trial.

The Craigslist ad indicated its poster was a 38-year-old woman seeking a man to share “intimate family fun.” Morgan responded to this, only to find that the woman (undercover law enforcement officer) added her “12-year-old daughter” into the mix. The woman encouraged Morgan to make the fictional minor part of their “intimacy.”

Morgan expressed reservations about this but did not end the conversation. He expressed his continued desire to be intimate with the mother but did not expressly agree to involve the daughter. Morgan agreed to allow the daughter to watch and participate only if he felt this was “safe.” Upon traveling to meet the “woman and daughter,” Morgan was arrested.

Morgan attempted to argue entrapment at trial. Morgan testified that the advertisement did not mention anything about minor and asserted that the detective was the first to discuss involving the fictional minor in sex (which was true, given the email communications). He disavowed the idea of having sex with a minor. 

At the conclusion of the trial, Morgan requested that the jury be instructed as to the subjective entrapment defense. If the jury was instructed, they would have to consider if Morgan proved by a preponderance of the evidence he was improperly induced. If he was, the jury would consider if the State established his predisposition to target minors beyond a reasonable doubt.

However, the trial judge denied Morgan’s instruction. The judge decided that because there was not enough evidence supporting an entrapment defense, the jury would not be instructed. The jury nevertheless acquitted Morgan on three of four counts, but convicted of attempted lewd or lascivious exhibition.

On appeal, Morgan argued that the trial judge fundamentally erred by refusing to instruct the jury on entrapment. Florida’s 5th District Court of Appeal (Northeast Florida) agreed and reversed the guilty verdict, remanding to the lower court for a new trial. The 5th DCA wrote:

“The threshold for the giving of an instruction on a legally permissible theory of defense is low. To warrant the giving of such an instruction in a case where entrapment is being argued, the defense must show some evidence which suggests the possibility of entrapment. Once this threshold is met, regardless of how weak or improbable the evidence may be, the defense is entitled to the instruction.”

“Once the defense presents any evidence suggesting entrapment, it is neither our role nor that of the trial court to weigh the sufficiency of that evidence or rule upon the likelihood of success of the entrapment defense. Section 777.201(2), Florida Statutes (2010), specifically provides that the issue of entrapment shall be tried by the trier of fact.”

“Unlike circumstances where the suspect is communicating with a person believed to be a minor, Morgan responded to an advertisement for a casual encounter with an adult female. When the law enforcement officer interjected the prospect of including a minor, Morgan expressed reservations and was equivocal in his responses. We recognize that most within our society would immediately terminate the conversation upon the mention of the involvement of a minor, and perhaps the jury will reject the defense. However, there is at least some evidence with which the defense could suggest that Morgan was entrapped. The failure to give a jury instruction on entrapment was error.”

In sum, Morgan v. State, 112 So.3d 122 (Fla. 5th DCA 2013) is a significant contribution to Florida’s corpus of case law regarding the entrapment defense – and specifically, the right of a defendant to have the jury instructed on entrapment. The 5th DCA held:

• Morgan offered at least some evidence at trial that he was entrapped
• This was sufficient for the issue of whether he was entrapped to become an issue for the finder of fact at trial – the jury
• Since the judge deprived the jury of their right to consider if Morgan was entrapped – despite the fact that evidence existed of entrapment – Morgan must receive a new trial

Notably, Morgan’s second trial would not give the State another chance to prove the three counts Morgan was found not guilty of (traveling, attempted lewd battery, solicitation). Morgan’s new trial would only be on the attempted exhibition count – because he could not be tried again for the others due to double jeopardy protections.

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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