Major FL Court Reverses Conviction Based on Erroneous Entrapment Jury Instruction

January 14, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 4th District Court of Appeal reversed a defendant’s conviction stemming from a drug sale to a police officer because the judge misinformed the jury about the burden of proof when arguing entrapment.

In Florida, entrapment is a well-known criminal defense. Broadly, entrapment is said to occur when law enforcement induces someone to commit a crime that they would not have otherwise committed (e.g. were not predisposed to commit). Sorrells v. United States, 287 U.S. 435 (1932)

Entrapment functions as a “total defense” to criminal charges. This means that if someone only acted unlawfully due to entrapment, they are not guilty of the underlying offenses. Kent v. State, 704 So.2d 121 (Fla. 1st DCA 1997) 

There are two types of entrapment in Florida – objective entrapment and subjective entrapment. The difference between these is critical to understand, as knowing whether to argue objective or subjective entrapment can improve the odds of using an entrapment defense successfully.

Objective entrapment (also known as “due process entrapment”), occurs when law enforcement conduct that resulted in someone acting criminally was so outrageous, prosecuting them would violate their due process rights. 

Typically, objective entrapment cases involve outright illegal (or extremely unethical) activities by the police (or other government agents, such as confidential informants).

Examples of cases where Florida courts have found objective entrapment include:

• Law enforcement manufactures drugs 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))
• 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))

Notably, objective entrapment is considered the “harder” entrapment defense to successfully rely upon. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019)

This is because the police are legally permitted to conduct sting (e.g. undercover) operations. As a result, law enforcement activity is unlikely to be viewed as violating a defendant’s due process rights unless it was illegal (or extremely unethical, such as entering a sexual relationship with the defendant to get them to commit the charged crime).

The other form of entrapment is subjective entrapment (also known as statutory entrapment). Subjective entrapment is codified by Munoz v. State, 629 So. 2d 90 (Fla. 1993) decision and Fla. Stat. 777.201. It occurs when law enforcement induces a non-predisposed defendant to commit a crime – even if the tactics utilized were not technically illegal or egregiously unethical.

There are two prongs of a subjective entrapment evaluation: inducement and predisposition. If a defendant seeks to argue subjective entrapment as a defense (can be done via a pretrial motion to dismiss, at trial, or both), they must first establish by a preponderance (majority) of the evidence that they were impermissibly induced to commit the offense(s) charged.

For entrapment purposes, inducement does not occur simply because undercover officers were involved in “making the crime happen.” To constitute inducement, the police must have resorted to tactics which risked that even a person who was not ready and willing to commit the crime would act unlawfully.

Examples of  impermissible“inducement” may include (Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013)):

• Coaxing, cajoling, or harassment (e.g. texting the defendant constantly)
• Promises of friendship with the defendant (e.g. “I’ll be your best friend if…”) 
• Promises of monetary reward (e.g. “I’ll give you $100 if…”)

If someone relying upon a subjective entrapment defense establishes that they were induced, this significantly improves the chances that a prosecution will be unsuccessful. Once inducement is shown, the burden shifts to the State to prove beyond a reasonable doubt that the defendant was predisposed to commit the underlying crime(s). 

If the State fails to show the defendant was “ready and willing, without persuasion” to commit the charged offense(s) – even in the absence of inducement – the charges against the defendant must be dismissed (or they must be found not guilty due to entrapment at trial). 

Note: For a full breakdown of inducement for entrapment purposes in Florida, click here. For a discussion of what constitutes “predisposition,” click here.

If someone argues that they were subjectively (statutorily) entrapped at trial, it is absolutely critical that the judge correctly instructs the jury as to the burden of proof. As we discussed:

• Inducement must be proven by the defendant by a preponderance (majority) of the evidence
• If inducement is proven, the State then has the burden to prove predisposition beyond a reasonable doubt

Occasionally, a trial judge may give a jury instruction as to the entrapment defense that does not accurately represent what Florida’s entrapment law (Fla. Stat. 777.201) actually says. This may lead to the jury thinking that the defendant has to prove both that they were induced and that they were not predisposed to act unlawfully.

If such an erroneous instruction is given, a defendant’s conviction(s) be reversed on appeal, as an improper entrapment jury instruction is fundamental error. Let’s take a look at a major case illustrating this principle – Crutchfield v. State, 739 So.2d 1193 (Fla. 4th DCA 1999) – and what it means for defendants arguing entrapment in Florida.

KEY CASE: Crutchfield v. State, 739 So.2d 1193 (Fla. 4th DCA 1999) 

In Crutchfield, the defendant (Crutchfield) was convicted of selling and possessing cocaine. At trial, Crutchfield argued he was subjectively entrapped – but he was convicted.

At trial, it was revealed that an undercover law enforcement officer was flagged down by both Crutchfield and his co-defendant (Southward). The undercover officer (Schaubel) asked the two men to purchase rock cocaine for him. They did so, and when Crutchfield handed Schaubel the drugs, he was arrested.

At trial, Crutchfield asserted he was subjectively entrapped by Schaubel. He was unsuccessful, and was convicted of both the sale and possession charges.

Although this seemed to be “case closed,” Crutchfield appealed his conviction to Florida’s 4th District Court of Appeal on intriguing legal grounds. He claimed that the trial judge committed fundamental error when the judge instructed the jury as to the subjective entrapment defense. The instruction read:

“It is also not entrapment merely because a law enforcement officer in good faith attempted to detect crime provided the Defendant had the opportunity, means and facility to commit the offense which the Defendant intended to commit and would have committed otherwise. Used tricks, decoys or sub-subterfuge to expose the Defendant’s criminal acts. Was present and pretending to aid or assist in the commission of the offense. On the issue of entrapment, the defendant must prove to you by a preponderance of the evidence that his criminal conduct occurred as a result of the entrapment.”

Crutchfield argued he did not have to prove by a preponderance of the evidence that his criminal conduct occurred as a result of entrapment. Crutchfield had to establish that he was induced by a preponderance of the evidence, but if inducement had been shown, the State had to establish Crutchfield’s predisposition to engage in unlawful drug activity beyond a reasonable doubt.

Florida’s 4th District Court of Appeal agreed with Crutchfield, reversing his convictions. The 4th DCA found that the instruction misled the jury, resulting in “fundamental error” that required a new trial:

“In Vazquez v. State, 700 So.2d 5, 10 (Fla. 4th DCA 1997), the trial court gave the same jury instruction as the one given by the trial court in the case at bar. The Vazquez court found that the trial court’s instruction did not comply with the supreme court’s opinion in Munoz v. State, 629 So.2d 90 (Fla.1993). In Munoz, the court held that a defendant asserting the statutory defense of entrapment initially has the burden to establish lack of predisposition, but once the defendant produces evidence of no predisposition, the burden shifts to the prosecution to rebut this evidence beyond a reasonable doubt.”

“The state argues that Crutchfield’s claim was not properly preserved because he did not object at trial and that any error was invited. The cases cited by the state for this proposition are persuasive; however, the state fails to consider this court’s recent opinion in Miller v. State, 723 So.2d 353 (Fla. 4th DCA 1998), rev. granted, State v. Miller, 732 So.2d 328 (Fla.1999). In Miller, the trial court utilized the same jury instruction on entrapment as the trial court used in the case before us. See Id. at 354. Even though the defendant in Miller did not object to the jury instruction, this court held that the trial court committed fundamental error by giving the improper jury instruction and reversed Miller’s conviction. We, therefore, reverse and remand for a new trial.”

In sum, Crutchfield v. State, 739 So.2d 1193 (Fla. 4th DCA 1999) marks a major development in Florida’s corpus of case law on the issue of entrapment – and specifically, the wording of jury instructions when someone relies upon a subjective entrapment defense. The 4th DCA found:

• The trial judge’s instruction to the jury was a misstatement of the law (as it omitted the fact that the burden shifted to the State once the defendant established inducement)
• As a result, the jury was misled to believe that Crutchfield had to prove “more” than was actually required (e.g. he had to prove both inducement and lack of predisposition)
• Because this was “fundamental error,” Crutchfield’s convictions required reversal – even though he did not object at trial to the jury instruction

Florida’s criminal defense community should take note of Crutchfield v. State, 739 So.2d 1193 (Fla. 4th DCA 1999), as it makes clear that erroneous jury instructions on entrapment rise to the level of fundamental error. This requires reversal of a defendant’s conviction(s), even when there was no objection to the jury instructions at the time they were read.

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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