North FL’s Highest Court Debates Motions to Dismiss in Entrapment Cases: Gennette v. State

March 5, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Case Summary

Florida’s 1st District Court of Appeal dismissed a case against a defendant after he claimed he was subjectively entrapped. However, one judge disagreed – finding a reasonable jury could have concluded otherwise.

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

Charge(s): Solicitation of a Minor, Traveling to Meet a Minor, Unlawful Use of a Two-Way Communications Device

Outcome: Case THROWN OUT, as Gennette was subjectively entrapped by law enforcement to commit the offenses.

About Entrapment in Florida

In Florida, unlawful use of a two-way communications device (Fla. Stat. 934.215) is a very serious felony offense. For someone to be guilty, the State must prove all of the following elements beyond a reasonable doubt:

• The defendant knowingly used a two-way communications device; (e.g., cellphone, walkie-talkie, radio, texting app, etc.)
• The defendant used the device to facilitate the commission of a felony offense

Unlawful use of a two-way communications device is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. Mizner v. State, 154 So.3d 391 (Fla 2d. DCA 2016)

Unlawful use of a two-way communications device will typically be charged alongside the felony the two-way device was allegedly used to facilitate. In many cases, these felonies are:

• Traveling to meet a minor (Fla. Stat. Section 847.1035(4)), a second-degree felony punishable by up to 15 years in prison and a $10,000 fine
• Online solicitation of a minor (Fla. Stat. Section 847.1035(3)), a third-degree felony punishable by up to 5 years in prison and a $5,000 fine

For someone to be guilty of solicitation of a minor, the State must prove all of the following beyond a reasonable doubt:

• The defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data transmission
• The defendant used the device to seduce, solicit, lure or entice a minor (under 18) or person believed to be a minor (e.g. undercover law enforcement) to engage in sexual activity (or attempted to do so)

Like unlawful use of a two-way device, solicitation of a minor online is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine.

An even more serious offense is traveling to meet a minor (Fla. Stat. 847.0135(4)). For someone to be guilty, the State must prove all of the following beyond a reasonable doubt:

• The defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data transmission
• The defendant used the device to seduce, solicit, lure or entice a minor (under 18) or person believed to be a minor to engage in sexual activity (or attempted to do so)
• After that solicitation, the defendant then traveled or attempted to travel within Florida to meet the minor (or person believed to be a minor) to engage in unlawful sexual activity

Traveling to meet a minor (or person believed to be a minor) for sex is a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine.

Note: It is also illegal to solicit someone who is or is believed to be the parent or guardian of a minor for sex (847.0135(3)(b)) and subsequently travel to meet the minor and parent/guardian for sexual purposes (847.0135(4)(b)). For more, click here.

In the event that someone is charged with the “unholy trinity” (unlawful use, solicitation, and traveling to meet a minor), Florida courts often dismiss the unlawful use and solicitation counts as a matter of law. This is because charging all three offenses from the same course of conduct violates a defendant’s double jeopardy protections. To learn more, click here.

If someone is charged with any of the above offenses after being ensnared in an online sting operation by law enforcement (e.g. the “minor” was actually a police officer), they may choose to argue an entrapment defense. There are two types of entrapment in Florida – objective and subjective.

Objective entrapment is generally considered “harder” to prove. It occurs when police engage in such egregious misconduct that a defendant’s due process rights are violated by a prosecution – even if they are guilty of the underlying offenses. 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))
• 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 decided as a matter of law, before trial (e.g. a judge will grant or deny a pretrial motion to dismiss). It is not argued to the jury. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019)

Subjective (or statutory) entrapment occurs when police impermissibly induce a non-predisposed defendant to commit a crime. For subjective entrapment to be established, a defendant must first prove by a preponderance (majority) of the evidence that law enforcement relied upon prohibited tactics to “bait them” to act criminally (Fla. Stat. 777.201).

Under Munoz v. State, 629 So. 2d 90 (Fla. 1993) and its progeny, examples of inducement may include:

• Coaxing, persuasion, cajoling and trickery
• Promises of friendship, monetary gain or affection
• Badgering or coercion 

If someone establishes by a preponderance of the evidence that they were impermissibly induced to act unlawfully, the burden of proof shifts to the State to establish a defendant’s predisposition to commit the underlying offenses beyond a reasonable doubt. If the State fails, the defendant is not guilty on entrapment grounds (Munoz).

There are two settings in which subjective (e.g. statutory) entrapment can be raised as a defense. These are:

• In the form of a pretrial motion to dismiss (pursuant to 3.190(c)(4)), and/or
• At trial itself (e.g. argued to the jury)

In the event that entrapment is argued in a pretrial motion to dismiss, the trial judge can either grant or deny that motion. In some cases, if a subjective entrapment dismissal motion is denied by a judge, a defendant may elect to enter a plea of guilty or no contest that reserves their right to appeal the trial judge’s ruling. 

That’s exactly what happened in Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013), a major decision on entrapment in solicitation/traveling/unlawful use of a two-way device cases. There, Florida’s 1st District Court of Appeal reversed a judge’s denial of Gennette’s pretrial motion to dismiss as a matter of law – granting the motion and releasing Gennette from custody.

Gennette was initially charged with traveling to meet a minor, solicitation of a minor online, and unlawful use of a two-way device after he was ensnared in a law enforcement sting. Gennette claimed that he was induced to commit the offenses and not predisposed to do so. As a result, he argued he was entitled to dismissal of the charges as a matter of law.

Genette’s charges stemmed from him replying to a Craigslist ad posted by law enforcement. The ad appeared to come from a 19-year-old woman (an adult) seeking a “hot night” with her sister, whose age was not specified. Nothing in the ad indicated any illegal conduct. 

Gennette responded to the ad positively but skeptically (“For real? Nah, I don’t believe it, LOL can U prove me wrong? cute guy here, Trey”). The undercover officer, posing as the 19-year-old, then revealed that her “little sister” was 14 years old, without mentioning anything sexual (“Hi Trey! … My lil sis is in town visiting me for the summer. She is 14, you ok with that?”). 

The next morning, Gennette continued the email exchange, noting the sister was “a bit young” before sending a photo of himself and his pet possum (“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 discussion then shifted to his pet possum, leading to dozens of emails that contained no suggestions of sexual activity from Gennette. When the officer sensed he wasn’t engaging with the implied illegal conduct, she redirected the conversation (“do u realize that its me and my lil sis.”). 

Gennette kept his replies free of sexual content, prompting the officer to ask if he was “scared” (“r u scared to talk about it[?]”). Only after this did the exchange become more suggestive – but Gennette persisted in focusing solely on the 19-year-old until the officer explicitly urged him not to “leave out” the minor sister. 

Gennette was later arrested and charged after traveling to a meet-up spot. His pretrial motion to dismiss the charges on subjective entrapment grounds was denied. After this occurred, Gennette pled no contest to one count of unlawful use of a two-way device. The State nolle prossed the remaining charges (e.g. dropped them while reserving the right to bring them again).

Exercising the right of appeal he preserved, Gennette argued to the 1st DCA that the trial judge erred as a matter of law in denying his motion to dismiss. The 1st DCA agreed – finding that Gennette had been impermissibly entrapped. The 1st DCA 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.”

“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.”

In essence, because law enforcement used impermissible “coaxing and cajoling” in an effort to get Gennette to commit the underlying offenses, and Gennette was not predisposed (“ready and willing, without persuasion”) to commit the crime(s), the charges against him could not stand as a matter of law.

However, one judge on the 1st DCA (Judge Osterhaus) dissented – in an opinion that provides insight into a fascinating intra-court debate on how motions to dismiss in entrapment cases should be evaluated. Citing Munoz v. State, 629 So. 2d 90 (Fla. 1993), Judge Osterhaus began:

“I respectfully dissent and would affirm the trial court’s decision to deny Appellant’s motion to dismiss. In Munoz v. State, the Florida Supreme Court said that trial judges may resolve the issue of entrapment as a matter of law in a motion to dismiss where two conditions prevail: “when the evidence is not conflicting and factual circumstances are not in dispute.” 629 So.2d 90, 95 (Fla. 1993). Where I differ from my colleagues is that I view this case to involve conflicting evidence that precludes resolution of the entrapment issue as a matter of law. Specifically the trier of fact, rather than a court, should decide whether government inducement directly caused Appellant’s conduct.”

Judge Osterhaus argued that because both the State and Gennette had “reasonable interpretations of the evidence” (e.g. both pro- and anti-entrapment arguments had support), the case should’ve been sent to the jury. Judge Osterhaus thought it was not entirely clear whether police had indeed “coaxed and cajoled” (e.g. induced) Gennette, writing:

“The problem is, however, that Appellant’s perspective is not the only reasonable way of interpreting the evidence. The state has posited an alternate, but perfectly reasonable, interpretation of the facts that places responsibility for Appellant’s conduct on Appellant himself. From the state’s perspective “Appellant failed to establish by a preponderance of the evidence that he was induced by law enforcement to commit the offense.” 

“Compounding the force of the state’s view of the evidence at this juncture is that all questions and inferences from the facts must be resolved in its favor. See, e.g., Parks v. State, 96 So.3d 474, 476 (Fla. 1st DCA 2012) (“The State is not required to pre-try its case in defense of a motion to dismiss, but need only present sufficient facts that, when viewed in a light most favorable to the State, show that a reasonable jury could find in its favor.”). Because two conflicting, but wholly reasonable, interpretations of the facts exist in this case, I think the trial court correctly denied Appellant’s motion to dismiss. See Munoz, 629 So.2d at 100 (construing section 777.201 to require questions to be submitted to a jury when “reasonable persons could draw different conclusions from the facts”).”

Because Judge Osterhaus believed a reasonable jury could find in the State’s favor on the issue of inducement (or lack thereof), he believed the 1st DCA erred by granting Gennette’s motion to dismiss. The fact that it was not entirely clear Gennette’s view (e.g. that he was induced) was the correct one, in Judge Osterhaus’s mind, meant the case should be decided by a jury.

In sum, Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013) provides a fascinating exploration of the jurisprudential tension that exists among Florida judges when evaluating whether motions to dismiss before trial on entrapment grounds should be granted or denied. In Gennette:

• The 1st DCA majority held that the evidence showed clear inducement by the State, and no proof that Gennette was predisposed to commit the offense(s) – entitling him to the dismissal of charges as a matter of law
• The dissent (Judge Osterhaus) found that the State had a reasonable interpretation of the chat logs that differed from Gennette’s (e.g. that he was not induced) – and because of that, the 1st DCA should have affirmed the denial of the motion to dismiss and allowed the jury to hear the case

Though the defense-friendly majority did win in Gennette’s case, the decision makes clear that some judges will be more likely than others in Tallahassee and North Florida to grant (or deny) pretrial motions to dismiss in traveling/solicitation/unlawful use cases on subjective entrapment grounds.

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 criminal 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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