Entrapment in Florida: What Counts as Predisposition to Commit a Crime?

June 9, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, entrapment can be used as a defense to various criminal charges. Under Fla. Stat. Section 777.201 and the Florida Supreme Court’s ruling in Munoz v. State, 629 So. 2d 90 (Fla. 1993), entrapment occurs when the government induces a non-predisposed defendant to commit a crime they otherwise would not have committed.

But what does “predisposition” mean in the context of Florida’s law surrounding entrapment? This article will discuss what must be established for a defendant arguing they were entrapped to have been considered predisposed to commit the charged crime.

Florida’s courts have defined predisposition for entrapment purposes as when someone is ready and willing to commit the charged offense without persuasion. If law enforcement officers were forced to rely upon any of the following to convince the defendant to act criminally, courts do not consider the defendant to have been predisposed:

• Coaxing and cajoling
• Promises of friendship, affection, or payment
• Threats of any kind
• Other coercive tactics

Put simply, the defendant must readily acquiesce to the criminal activity without force or coercion to be considered predisposed. State v. Harper, 254 So.3d 479 (Fla. 4th DCA 2018)

Under Florida law, a defendant can argue objective entrapment or subjective entrapment (or both) in response to being charged with a crime. Objective entrapment occurs when the government “supplies all of the instrumentalities of a crime, controls all of its aspects, and teaches the intended target how to commit the crime for the purpose of arresting him.” State v. Finno, 643 So. 2d 1166 (Fla. 4th DCA 1994)

Examples of objective entrapment may include:

• Undercover law enforcement officers organize a bank robbery and persuade someone to rob the bank with them, then arrest that person for robbery
• Undercover law enforcement officers manufacture drugs and sell them to a particular person after convincing them to purchase the illegal substance
• An undercover officer poses as a sex worker, actively engages and initiates sex with a passerby, then arrests that person for soliciting prostitution

Objective entrapment focuses on whether the government’s conduct was so egregious that it violates due process, regardless of the defendant’s state of mind. In contrast, under 777.201, a defendant can raise a defense of subjective entrapment by showing they were induced by law enforcement and were not predisposed to commit the crime. If the defendant proves this, they cannot be convicted of the charged offense.

For a subjective entrapment claim to succeed under 777.201, the defense must prove by a preponderance (majority) of the evidence that the defendant was induced by law enforcement to act. Inducement is considered conduct by police that creates a substantial risk that an otherwise unwilling person would commit the offense.

Once this is shown by a preponderance of the evidence, the State must prove that the defendant was predisposed to commit the crime beyond a reasonable doubt. If the State fails, the charges must be dismissed by the judge (if entrapment was argued in a pretrial hearing), or the defendant must be found not guilty by the jury by reason of entrapment.

In establishing a defendant’s predisposition to commit the charged offense(s), the State may provide evidence of any of the following facts during a pretrial hearing or at trial to the jury:

• The defendant’s prior criminal activities
• The defendant’s reputation for such activities
• Reasonable suspicion of a defendant’s involvement in such activity
• The defendant’s ready acquiescence of the crime 

Note: Under 777.201, predisposition must be shown towards committing the underlying crime, not to commit crime in general. For example, if a defendant once was convicted of petty theft, this is not considered evidence of predisposition to solicit a minor for sex. As these are entirely different classes of criminal activities, a petty theft conviction would not provide evidence of predisposition.

Despite the typical inadmissibility of a defendant’s criminal history at trial, the use of an entrapment defense opens the door for its admission if inducement has been established and a defendant’s criminal history is relevant to proving predisposition. State v. Panebianco, 370 So.3d 345 (Fla. 2d. DCA 2023)

A seminal case regarding this fact is Rotenberry v. State. Rotenberry argued entrapment after he was charged with various offenses stemming from a drug operation that involved undercover law enforcement agents. The First District Court of Appeal held that because Rotenberry:

• Possessed illegal drugs in the past
• Was a willing participant in the drug transaction
• At no time objected to the transaction or any part of it
• Was not “lured” into the sting by an undercover officer, but by one of his friends who was also ensnared

The State had established his predisposition beyond a reasonable doubt, allowing his conviction to stand. Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983)(rev’d on other grounds)

In sum, a defendant is considered predisposed for entrapment purposes when he was ready and willing, without persuasion, to commit the charged offense(s). Once a defendant has proven that law enforcement engaged in conduct that created a substantial risk that a non-predisposed person would commit the charged offense, the State must prove a defendant’s predisposition to commit the underlying crime beyond a reasonable doubt for charges to move forward.

In proving a defendant was predisposed to act criminally, the State may rely upon a defendant’s criminal history, their reputation, and their ready acquiescence to the alleged crime, as well as other relevant facts of a case. If someone is considered predisposed to have acted criminally, this defeats a subjective entrapment claim – only objective (official misconduct) entrapment can still be argued as an entrapment defense.

If someone is arrested and formally charged in Florida 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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