North Florida’s Highest Court Grants Pretrial Motion to Dismiss Felony Charge Based on Entrapment

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

Tallahassee and North Florida’s highest court granted a defendant’s pretrial motion to dismiss an unlawful use of a two-way device charge, finding he was entrapped as a matter of law.

In Florida, entrapment is a defense that is well-known but not necessarily understood by many. Entrapment occurs when government agents (usually police officers) induce someone to commit a crime who was not predisposed to do so. Munoz v. State, 629 So. 2d 90 (Fla. 1993).

There are two types of entrapment in Florida – objective and subjective. Objective entrapment occurs when law enforcement engages in blatantly unlawful activity or acts in such a manner that regardless of the defendant’s guilt (or lack thereof), prosecuting them would violate their due process rights. Some examples may include:

• Law enforcement manufactures drugs to sell them to people while undercover with the intent of arresting them
• Law enforcement sends child pornography tapes obtained from other investigations to people with the intent of arresting them for possessing it
• Law enforcement threatens someone’s life or physical safety if they do not commit the crime, then arrests them when they act unlawfully

Though objective entrapment is extremely serious, it is the less commonly argued of the two entrapment defenses. This is because proving objective entrapment is quite a “high bar,” given how egregiously the police must act for this defense to succeed. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). 

The entrapment defense that is more frequently relied upon is subjective (statutory) entrapment. The subjective entrapment defense is codified under Fla. Stat. 777.201 and Munoz v. State, 629 So. 2d 90 (Fla. 1993). Subjective entrapment is a two-pronged test, which requires the following in order to succeed:

• First, the defense must prove by a preponderance (majority) of the evidence that police induced the defendant to act unlawfully
• If this is done, the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime

Inducement for entrapment purposes occurs when law enforcement goes beyond merely giving someone the “opportunity” to commit a crime, and relies upon inappropriate tactics to attempt to make the unlawful activity occur. This can include coaxing and cajoling a defendant, a promise of friendship or monetary reward, and more. For more on inducement, click here.

Someone is considered predisposed to commit an offense when they were “ready and willing, without persuasion” to engage in the charged unlawful activity. Though a defendant’s lack of a criminal history may make it harder for the State to prove predisposition, the State can rely only upon the defendant’s “post-inducement” conduct to do so. For more on predisposition, click here.

When someone makes a claim of subjective entrapment in Florida, it is often in the context of having been ensnared in a police sting. These stings frequently involve police posing as fictional minors online and engaging in sexually-charged communications with a defendant. This may lead to charges such as:

• Traveling to meet a minor under Fla. Stat. 847.0135(4) (if the defendant agrees to meet up with the fictional minor for sexual activity and travels or attempts to travel for this purpose)
• Online solicitation of a minor (or person believed to be a minor) under Fla. Stat. 847.0135(3)
• Unlawful use of a two-way communications device (Fla. Stat. 934.215)

Often, courts will allow claims of subjective entrapment to be decided by a jury at trial. But sometimes, a defendant has been so clearly entrapped by law enforcement that a court may rule that the charge(s) against the defendant must be dismissed (or should have been dismissed) before trial on entrapment grounds.

One such case (involving a sting operation) was Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013), decided by Tallahassee and North Florida’s highest court – Florida’s 1st District Court of Appeal. But why did the court dismiss the charges against Gennette on subjective entrapment grounds? Let’s discuss.

KEY CASE: Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013)

In Gennette, the defendant (Gennette) responded to a Craigslist advertisement created by law enforcement. The advertisement was ostensibly uploaded by a 19-year-old (adult) female looking for a “hot night” with her sister of an unspecified age. The advertisement did not suggest illegal activity.

Gennette responded to the advertisement positively (“For real? nah, I don’t believe it, LOL can U prove me wrong? cute guy here, Trey”). The undercover officer behind the advertisement replied by disclosing to Gennette that her “sister” was 14, but said nothing about sexual activity (“Hi Trey! … My lil sis is in town visiting me for the summer. She is 14, you ok with that?”)

Gennette continued his email chain with the undercover officer the following morning, replying that the sister was a “bit young” before sending an image of himself to the officer (“well I think she is a bit young, lol but depends on what you have in mind before i send my pic, are there any age requirements? lmao well the hell with it, ill send a pic anyway me and my pet possum.”). 

The conversation then turned to Gennette’s pet possum, and dozens of emails were exchanged that did not involve Gennette suggesting sexual activity. Sensing Gennette was not “biting,” the officer directed the conversation towards this once again (“do u realize that its me and my lil sis.”).

Gennette continued to reply with emails that lacked any sexual content, eventually causing the officer to question if he was “scared” (“r u scared to talk about it[?]”). The email chain became more sexually suggestive following this – but Gennette continued to make the conversation only about the “19-year-old” until the officer prompted him not to “leave out” the minor sister.

Gennette was eventually arrested and charged with unlawful use of a two-way communications device to facilitate a felony (unlawful sex with a minor). He filed a pretrial motion to dismiss on subjective entrapment grounds, arguing that he was induced to send the solicitous messages and was not predisposed to do so. 

The trial court denied Gennette’s motion, and he was convicted of the offense (and sentenced). After hearing his appeal, the 1st DCA reversed Gennette’s conviction, finding that his pretrial motion to dismiss on entrapment grounds should have been granted. According to the 1st DCA, Gennette was entrapped as a matter of law, so the case should not have gone to a jury:

The 1st DCA began its analysis by finding that Gennette was quite clearly induced to commit the charged conduct – as the officer’s emails went far beyond giving Gennette the “opportunity” to act unlawfully and he was not “ready and willing” to act criminally. The court wrote: 

“In the case before us, the e-mail chain established, by a preponderance of evidence, that the government induced or encouraged Appellant, and due to his lack of predisposition, caused him by methods of persuasion to commit the offenses charged. As previously noted, the parties stipulated that Appellant was ‘a person other than one who is ready to commit’ the offense.”

“Throughout the e-mail chain, it was the agent who took the lead. It was the law enforcement agent who initially suggested the presence of a minor, though without any specific proposition of sexual or other criminal involvement between Appellant and the minor. When Appellant’s communications wandered to innocuous matters, it was the agent who repeatedly steered the conversation back to sexual activity with a minor.”

As you may have noticed, Gennette’s appeal was made a bit “easier” because the State stipulated (agreed) to the fact that Gennette was not predisposed to engage in the communications. Since this was not an issue, Gennette only needed to prove on appeal that he was improperly induced by a preponderance of the evidence. The court concluded that he was, observing: 

“It was the agent who coaxed and cajoled Appellant for more details and challenged Appellant’s reluctance by impugning his nerve and suggesting he was scared. The agent’s persistent urging to overcome Appellant’s obvious reluctance to commit or even describe illegal activity in his e-mail messages easily fits the statutory definition of entrapment — ‘induces or encourages’ and ‘as a direct result, causes’ Appellant’s eventual unlawful communications.”

“Because the preponderance of the evidence, as set out in the e-mail messages, showed the law enforcement officer’s methods of persuasion induced or encouraged, and as a direct result caused Appellant’s unlawful communications, the legal definition of entrapment set out in section 777.201, Florida Statutes was met and the motion to dismiss should have been granted.”

The 1st DCA remanded the matter to the trial court to reverse Gennette’s sentence, and directed that the unlawful use of a two-way device charge against him be dismissed. 

In sum, Gennette is a major development in Florida case law surrounding subjective entrapment in the context of law enforcement sting operations. The 1st DCA applied Fla. Stat. 777.201 and concluded that because Gennette was not “predisposed” to act and the police went far beyond merely “giving him the opportunity” to commit a crime, he was impermissibly entrapped.

Critics of Gennette (including 1st DCA Judge Osterhaus, who authored a dissent in the case) argue that the question of whether Gennette was subjectively entrapped was rightly answered by a jury verdict (as Gennette also argued entrapment at trial). However, supporters of the decision counter that the matter should have never been heard by a jury in the first place.

Regardless of one’s opinion on Gennette, the decision takes a strong stand against any police action (including “coaxing” and “cajoling”) that can be described as creating a risk that even a non-predisposed defendant will act criminally. Florida defense attorneys should take note if arguing entrapment in a pretrial motion to dismiss or at trial itself.

Unlawful use of a two-way communications device is a very serious charge in Florida, and can carry lengthy prison sentences as well as hefty fines. If someone is charged, it is vital to secure experienced and aggressive legal representation as soon as possible. 

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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