North FL’s Highest Court Downward Departs in Solicitation Case But Rejects Entrapment Defense

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

Case Summary

Florida’s 1st District Court of Appeal affirmed a defendant’s conviction for solicitation of a minor, finding he was not subjectively or objectively entrapped as a matter of law – but that a downward departure in his sentence was warranted.

CASE: State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014)

Charge(s): Solicitation of a Minor

Outcome: Defendant was not entrapped as a matter of law to commit the offense – but the trial judge’s downward departure sentence was justified by the evidence.

Entrapment in Florida

In Florida, solicitation of a minor (Fla. Stat. 847.0135(3)) is a very serious offense. Solicitation is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. 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 (e.g. undercover law enforcement) to engage in sexual activity (or attempted to do so)

If someone physically travels (or attempts to travel) to meet the minor or person believed to be a minor for sex after soliciting them, this constitutes traveling to meet a minor for unlawful sexual activity – a second-degree felony punishable by up to 15 years in prison and a $10,000 fine. 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

In the event that someone is accused of solicitation, traveling, or other related offenses such as unlawful use of a two-way communications device (Fla. Stat. 934.215), they are likely to look into defenses to these charges. One such defense is entrapment, if the “victim” was a fictional minor (e.g. undercover law enforcement running a sting operation).

There are two types of entrapment in Florida – objective and subjective. Objective entrapment occurs when law enforcement acts in a manner that is so egregious, prosecuting the defendant would violate their due process rights – even if they are guilty of the underlying crime(s). Some examples of objective entrapment in Florida 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 (e.g. argued to the judge, not the jury). Courts are generally reluctant to grant motions to dismiss on objective entrapment grounds unless police conduct is especially outrageous (e.g. “shocks the conscience”). Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019)

Subjective (or statutory) entrapment is codified by Munoz v. State, 629 So. 2d 90 (Fla. 1993) and Fla. Stat. 777.201. In solicitation and traveling cases, it is generally considered the “easier” of the entrapment defenses to argue. Subjective entrapment can be raised via pretrial motion to dismiss, at trial itself, or both.

For subjective entrapment to be established, the defendant must first prove they were induced to act by law enforcement by a preponderance of the evidence. Inducement does not occur every time police officers are involved in “making a crime happen” – it involves use of impermissible tactics that risk ensnaring even a law-abiding person in criminal activity. For more, click here.

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 
• Threats 

In the event that any or all of the above are used to “bait” the defendant into unlawful activity, inducement is likely to be established. If this occurs, the burden of proof shifts to the State to prove the defendant was predisposed to commit the underlying offense(s) beyond a reasonable doubt (e.g. target minors sexually in a solicitation/traveling case).

If the State fails to prove predisposition beyond a reasonable doubt after inducement has been shown, the defendant is not guilty on subjective entrapment grounds. If the State can show the defendant’s predisposition to engage in the charged activity, a subjective (statutory) entrapment defense will fail – even if the defendant was induced.

Note: To learn more about inducement for entrapment purposes in Florida, click here. For more on predisposition, click here.

A defendant in a traveling and solicitation case in Florida may argue that they were subjectively and objectively entrapped. The likelihood of either entrapment defense succeeding is heavily dependent on the facts of a case. Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013)

In the event that someone is convicted of these offenses (e.g. their entrapment defenses fail), the length of their stay in custody (e.g. jail/prison) also depends on the facts of a case. Even though someone may be found guilty of the same set of offenses, certain “aggravating” or “mitigating” factors may influence their sentence. For more on downward departures, click here.

Certain cases involving alleged solicitation of a minor and traveling to meet a minor are likely to be considered “isolated, unsophisticated incidents” for which the defendant has shown remorse. 

Thus, even if the finder(s) of fact (e.g. the judge/jury) reject an entrapment defense and find the defendant guilty, a judge may nevertheless “depart downward” at sentencing (e.g. impose a lighter sentence).

One such case in which all of the above occurred was decided by Florida’s 1st District Court of Appeal – Tallahassee and North Florida’s highest court. There, the 1st DCA affirmed a guilty verdict in a solicitation and traveling to meet a minor case after finding that entrapment did not occur – and also affirmed a downward departure in the defendant’s sentence.

Let’s take a look at that case – State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014) – and what it means for defendants charged with solicitation and traveling to meet a minor in Florida, as well as those seeking a downward departure at sentencing.

KEY CASE: State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014)

In Davis, the defendant (Davis) was charged with solicitation of a minor and traveling to meet a minor. He was convicted – and received a sentence of 18 months in prison after the trial judge ordered a downward departure.

At trial, it was revealed that an undercover detective pretended to be a 32-year-old “sister” of a 13-year-old minor, posting an advertisement on Craigslist. According to the 1st DCA:

“While the advertisement stated that the 32–year–old’s “little sister” was in town and that they were “looking for a friend to have fun with tonight,” the age of the “little sister” was not stated. Seeing the ad, Mr. Davis invited the supposed 32–year–old out. But the detective answered (also online) that she (posing as the 32–year old who had posted the ad) and her sister were not “looking to hang out and have a relationship.” Thus began a dialogue that lasted approximately two hours, first online (“instant messenger”), then on the telephone. The detective posing as the 32–year–old repeatedly asked him what he was going to do when he came over and what he wanted to do to her sister. She told him the little sister was a youngster who wanted to learn new things, and directed him to bring condoms with him when he came to see them at the address she gave him. His conversations directly with the purported thirteen-year-old were limited to a few (maybe two) awkward minutes on the telephone, and to about twenty lines on “instant messenger.”

After Davis allegedly traveled to meet the pair for sex, he was arrested and charged. He moved to dismiss the charges before trial, arguing that he was both subjectively and objectively entrapped by law enforcement. However, this was rejected by the trial judge – and Davis was found guilty.

At sentencing, the trial judge found that Davis’s conduct constituted an “isolated, unsophisticated incident for which he has shown remorse.” Pursuant to State v. Salgado, 948 So.2d 12, 17 (Fla. 3d DCA 2006), the judge “downward departed” in sentencing Davis – ordering him to serve just 18 months in prison (Davis faced more time in prison without a downward departure).

On appeal to the 1st DCA, Davis argued the trial judge erred as a matter of law in denying his motion to dismiss on subjective and objective entrapment grounds. The State cross-appealed, arguing the trial judge “abused his discretion” in downwardly departing. The State urged the 1st DCA to reverse Davis’s sentence and order a resentencing.

The 1st DCA (Tallahassee and North Florida’s highest court) affirmed both the denial of Davis’s motion to dismiss on entrapment grounds and the judge’s decision to depart downward when he sentenced Davis. Addressing Davis’s claim that he was impermissibly entrapped, the 1st DCA wrote:

“As regards the “objective entrapment” prong of appellant’s argument, we reject his characterization of the pleadings and the evidence. Although appellant was originally lured by the prospect of a sexual liaison with a 32–year–old woman, the evidence cannot fairly be read as showing that he was promised the 32–year–old’s sexual favors as an inducement to interact sexually with the child.”

“As regards the “subjective entrapment” prong, the issue boils down to whether the appellant was predisposed to commit the offenses when government agents originally broached the subject. Our recent decision in Gennette v. State, 124 So.3d 273 (Fla. 1st DCA 2013) is not controlling because the state stipulated there that Gennette was not predisposed to commit the offenses charged. Id. at 278. In the present case, the jury could have found—the evidence was uncontroverted—that Mr. Davis told the undercover officer: “And actually, it’s kind of been on my mind to do something like that.” Arguably ambiguous—the government agent had raised the possibility of a ménage à trois—the statement was nevertheless uttered in the context of engaging in sexual activity with the fictitious thirteen-year-old child, and sufficiently raised a factual question as to Mr. Davis’s predisposition to engage sexually with children to create a question for the jury.”

However, the 1st DCA also rejected the State’s claim that the trial judge erred as a matter of law in ordering a downward departure in Davis’s case. Finding there was sufficient evidence in the record to support the claim that Davis’s conduct was an “unsophisticated, isolated incident for which he has shown remorse,” the 1st DCA wrote:

“Under subsection (j), the trial court’s alternative basis for downward departure, the state conceded that the episode was an isolated incident, and the dissenting opinion concedes that competent substantial evidence supports the trial court’s finding of fact that Mr. Davis’s remorse was genuine. Competent and substantial evidence also supports the trial court’s finding that Mr. Davis, who has lived with his mother his entire life, did not commit these crimes in a “sophisticated” fashion. The “several distinctive and deliberate steps,” see State v. Salgado, 948 So.2d 12, 17 (Fla. 3d DCA 2006), that he took in committing the offense were for the most part along a path government agents carefully laid out for him. The trial judge was entitled to conclude that Mr. Davis was “cooler online” than in real life.”

However, one judge on the 1st DCA – Judge Wetherell – disagreed with the denial of the State’s challenge to the downward departure. Rejecting the majority’s characterization of the incident, Judge Wetherell wrote in a dissenting opinion:

“Here, the record reflects that Davis undertook a series of distinctive and deliberate steps to commit the charged offense: he engaged in several hours of conversation with an undercover officer posing as a 13–year–old girl and her older sister, both online and on the phone; he evinced a consciousness of guilt and a desire to conceal the contents of his communications about what he intended to do with the minor by suggesting that they talk in person or on the phone rather than in the online chat; he made unsolicited comments about his sexual prowess and the things that he could “teach” the minor; he drove to Walmart to purchase condoms; and then he drove across town in order to have sex with a minor. These acts, taken together, reflect a level of sophistication that, in my view, precludes a downward departure under section 921.0026(2)(j).”

In sum, State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014) marks a significant development in Florida case law on entrapment in traveling to meet a minor and solicitation of a minor cases, as well as downward departures. The 1st DCA found that:

• Law enforcement’s conduct was not so egregious as to constitute objective entrapment
• There was a legitimate question raised from the content of the messages about Davis’s predisposition to commit the offense(s), resulting in the trial judge correctly denying the motion to dismiss and sending the issue to the jury
• On the issue of sentencing, the judge had grounds to conclude that Davis qualified for a downward departure – and did not abuse his discretion in ordering a “lighter” sentence

Florida’s criminal defense community should take note of State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014), as it provides insight into how North Florida’s highest court analyzes downward departures and entrapment in solicitation/traveling cases.

Note: Davis’s solicitation conviction was reversed by the Florida Supreme Court for violating double jeopardy pursuant to State v. Shelley, 176 So.3d 914 (Fla. 2015). However, the Court did not overrule the 1st DCA’s analysis of the downward departure and entrapment issues. To learn more, click here.

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 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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