North FL’s Highest Court REVERSES Conviction Due to Failure to Give Entrapment Instruction

April 10, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal REVERSED a defendant’s conviction, finding the judge’s failure to instruct the jury on entrapment required the defendant to receive a new trial.

CASE: Johnson v. State, 789 So.2d 1071 (Fla. 1st DCA 2001)

Charge(s): Possession of Cocaine

Outcome: Conviction REVERSED, as the trial judge failed to instruct the jury on entrapment even though SOME evidence existed in the record that the defendant was entrapped.

In Florida, entrapment is a total defense to criminal charges. As a general rule, entrapment occurs when government agents (e.g. law enforcement) use impermissible tactics to “manufacture” a crime that would not have otherwise occurred but for their intervention. For more on entrapment in Florida, click here.

There are two types of entrapment under Florida law – objective and subjective (e.g. statutory) entrapment. The difference between these is critical to understand if someone is exploring the use of an entrapment defense in a criminal case.

The first form of entrapment, objective entrapment, occurs when law enforcement officers (or confidential informants) act so egregiously in “manufacturing” a crime that the prosecution of the defendant would violate their due process rights, even if they are guilty and were predisposed to act unlawfully. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019)

Unlike subjective entrapment, objective entrapment is only argued as a matter of law. It cannot be relied upon as a defense at trial – objective entrapment must be raised in the form of a motion to dismiss (pretrial), a motion for judgment of acquittal (at trial), or both. For more, click here.

Florida’s courts are generally reluctant to find objective entrapment, as law enforcement is given broad discretion to conduct sting operations and use confidential informants.However, examples of cases in which objective entrapment has occurred 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))

The next type of entrapment – which is generally the “easier” of the two to argue – is subjective (statutory) entrapment. Codified under Munoz v. State, 629 So. 2d 90 (Fla. 1993) and Fla. Stat. 777.201, subjective entrapment occurs when law enforcement impermissibly induces someone to commit a crime, when they are not predisposed to do so.

If a defendant believes they were subjectively entrapped, they may raise this defense in the form of a pretrial motion to dismiss (Fla. R. Crim. P. 3.190(c)(4)) or a motion for judgment of acquittal – as well as at trial (e.g. to the jury). Unlike objective entrapment, subjective entrapment can be found by the judge or the jury. Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013)

For a subjective entrapment defense to succeed, the defendant must first establish that they were induced to act unlawfully by a preponderance (majority) of the evidence. This does not simply mean the police were “involved” in undercover operations – law enforcement must have relied upon impermissible tactics that risked even a non-predisposed defendant committing the crime.

Examples of prohibited inducement tactics (per Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013)), include the following:

• Coaxing, cajoling, or harassment
• Threats
• Promises of friendship 
• Promises of monetary reward

If law enforcement relies upon any of the above tactics (and this is proven by a preponderance of the evidence), the burden shifts to the State to prove the defendant was predisposed to commit the underlying offense(s) beyond a reasonable doubt. This means that the defendant was “ready and willing, without persuasion” to commit the crime BEFORE they were ever induced.

In the event that the State fails to show predisposition (once inducement has been established), the defendant is entitled to dismissal of the charges as a matter of law if:

• Dismissal on subjective entrapment grounds was moved for in the form of a pretrial motion to dismiss/MJOA
• No reasonable jury could conclude that the defendant was NOT entrapped (Blanco v. State, 218 So.3d 939 (Fla. 3d DCA 2017))

Even if the trial judge denies a motion to dismiss or motion for a judgment of acquittal, the jury must render a verdict of not guilty by entrapment if inducement is proven by a preponderance of the evidence – and the State cannot show predisposition beyond a reasonable doubt. Munoz v. State, 629 So. 2d 90 (Fla. 1993)

Note: To learn more about inducement for entrapment purposes, click here. To learn more about predisposition (relevant if subjective entrapment is argued, but not objective entrapment), click here.

As a general principle, a defendant does not have to “prove” entrapment (or even come close) for a jury at trial to be INSTRUCTED on the defense of subjective entrapment. A jury instruction is given at the end of the trial – and, in the context of a subjective entrapment defense, allows the jury to consider if a defendant was indeed entrapped if/when they have argued this.

Florida’s courts are clear that when there is ANY evidence in the record to support a particular defense, a defendant is entitled to have the jury instructed on that defense. That way, the jury will at least be able to consider the defendant’s legal arguments and either accept or reject them. Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984)

In one major entrapment case heard by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court), a defendant was convicted of purchasing cocaine (e.g. possession of cocaine) after he was ensnared in an undercover buy/bust operation. The defendant argued that he was impermissibly entrapped under Fla. Stat. 777.201.

At the conclusion of trial, the defendant asked the trial judge to instruct the jury on subjective entrapment (pursuant to Fla. Stat. 777.201). However, the trial judge denied that request – so the jury did not even get to consider the entrapment defense (as they were not informed of the law).

The defendant was convicted and appealed to the 1st DCA, where he argued the trial judge erred by failing to instruct the jury on subjective entrapment. The 1st DCA agreed – and REVERSED the defendant’s conviction, finding he was entitled to a new trial due to the error.

Let’s look at that case – Johnson v. State, 789 So.2d 1071 (Fla. 1st DCA 2001) – and discuss what it means for those exploring an entrapment defense in Florida.

KEY CASE: Johnson v. State, 789 So.2d 1071 (Fla. 1st DCA 2001)

In Johnson, the defendant (Johnson) was arrested and charged with possession of cocaine after he was “busted” by law enforcement in an undercover (sting) operation. At trial, the following facts emerged:

• Johnson was allegedly on the way to give someone a hair cut when he was encountered by the undercover officers (though this claim was contradicted by State witnesses)
• He testified that he never intended to sell drugs
• Officers told Johnson they would give him cocaine if he would assist them in purchasing it
• Johnson told the officers that he would help them, as he could “use” the cocaine because he’d been addicted to it for 25 years
• Johnson was ultimately arrested when the cocaine sale (which was orchestrated by law enforcement) transpired

At the conclusion of trial, Johnson requested the jury be instructed on the defense of subjective entrapment. The trial judge ultimately denied Johnson’s motion, resulting in the jury not being able to consider the subjective entrapment defense (as they were not instructed on it). Johnson was convicted.

On appeal, Johnson argued to the 1st DCA that the judge reversibly erred by refusing to instruct the jury on subjective entrapment. Johnson asserted that because there was SOME evidence in the record to support the defense (e.g. his trial testimony), this was sufficient under Pope and its progeny to require the trial judge to instruct the jury.

Because the jury was not instructed, Johnson argued, a new trial in his case was warranted. The 1st DCA AGREED and reversed Johnson’s conviction, remanding the matter for a new trial. The 1st DCA majority wrote:

“It is axiomatic that a defendant is entitled to have the jury instructed on the rules of law applicable to his or her theory of defense if there is any evidence to support the instruction, and the court may not weigh the evidence in determining whether the instruction is appropriate. The evidence need not be convincing to the trial judge before the instruction can be submitted to the jury, as it suffices that the defense is “suggested” by the testimony. However disdainful the trial judge may feel about the merits of the defense from a factual standpoint is beside the point. See Canty v. State, 471 So.2d 676, 678 (Fla. 1st DCA 1985); Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984). 

Applying the law to the facts of Johnson’s case, the 1st DCA concluded:

“In the instant case, which arose from an undercover buy/bust operation, appellant testified that the undercover officers offered to give him cocaine if he would assist them in purchasing it, and he stated that he agreed to assist the undercover officers because he could use the cocaine for his 25–year addiction. Additionally, appellant testified that he did not intend to sell drugs, but was instead on his way to give someone a hair cut when he encountered the undercover officers. Admittedly, this testimony was contradicted by the state’s witnesses, but appellant’s evidence was sufficient to suggest the entrapment defense under section 777.201, Florida Statutes (1999). Therefore, the trial court abused its discretion by weighing the evidence and refusing to give the requested instruction. See Canty; Pope. Because we cannot conclude that the trial court’s denial of the requested entrapment instruction was harmless under the circumstances of this case, we reverse and remand for new trial.”

Notably, one 1st DCA judge (Judge Booth) dissented – presumably on the basis that he did not believe there was any evidence in the record that supported an entrapment defense. However, as Judge Booth dissented without opinion, we cannot confirm why he disagreed with the majority.

In sum, Johnson v. State, 789 So.2d 1071 (Fla. 1st DCA 2001) marks a significant development in Florida’s corpus of case law surrounding subjective entrapment and when a jury instruction is necessary when entrapment is argued. The 1st DCA (Tallahassee and North FL’s highest court) held:

• There was some evidence (even though it was not strong) that Johnson was subjectively entrapped by law enforcement (e.g. that he was induced and not predisposed to engage in drug sales)
• Under Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984) and its progeny, this was sufficient to require that the jury be instructed on subjective entrapment
• Because the trial judge did not allow the jury to consider this defense, this was reversible error – requiring that Johnson receive a NEW TRIAL 

Florida’s criminal defense community should take note of Johnson v. State, 789 So.2d 1071 (Fla. 1st DCA 2001), as it makes clear that a trial judge’s failure to instruct a jury on entrapment may require reversal of a defendant’s conviction(s) (if there is ANY evidence in the record supporting an entrapment defense).

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.

  Social Share