You Have the RIGHT To Argue Entrapment at Trial, Major Florida Court Rules

December 4, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 2nd District Court of Appeal ruled that the trial judge preventing a defendant from arguing he was entrapped was grounds to reverse his convictions.

In Florida, entrapment is one of the most well-known defenses in criminal cases. There are two types of entrapment recognized under state law: subjective entrapment and objective entrapment. These can be raised before trial (in the form of a motion to dismiss on entrapment grounds) or at trial (argued to the jury).

Objective entrapment is also known as “official misconduct” or “due process” entrapment. This occurs when law enforcement engages in a course of action that is so egregious, prosecuting the defendant (even if they are guilty) would violate their due process rights under the Florida and U.S. Constitutions. Examples may 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))
• Undercover law enforcement threatens to kill or seriously injure someone if they do not commit a crime, then arrests them for doing so

Notably, objective entrapment is the less commonly argued form of this defense. This is because proving objective entrapment is quite difficult (a “high bar”), as law enforcement is permitted to engage in sting operations. Given this reality, the more frequently raised entrapment defense is subjective entrapment.

Subjective entrapment (also known as statutory entrapment) is codified by the Florida Supreme Court’s ruling in Munoz v. State, 629 So. 2d 90 (Fla. 1993) and Fla. Stat. 777.201. Subjective entrapment requires courts to perform a two-pronged test to determine whether a defendant was entrapped as a matter of law.

The first question that must be answered is whether the defendant was induced to act unlawfully. If a defendant argues that they were entrapped, inducement must be proven by a preponderance (majority) of the evidence (Munoz).

Inducement does not just mean that the police were involved in creating the opportunity for the defendant to commit a crime. Law enforcement must rely upon prohibited tactics (Gennette v. State, 124 So.3d 273 (Fla 1st DCA 2013)), such as:

• Coaxing or cajoling the defendant to commit the underlying offense (e.g. “Come on, please do it…”)
• Harassment, coercion, or impugning the character or “manhood” of the defendant (e.g. “You’re pathetic if you don’t do it…”)
• Promises of friendship or monetary reward (e.g. “I’ll give you money if you do it…”)

For more on inducement for entrapment purposes in Florida (and how courts determine if this has occurred), click here.

If inducement is shown by a preponderance of the evidence, the State has the burden to prove the defendant was predisposed to commit the underlying offense beyond a reasonable doubt. This means the defendant must have been “ready and willing, without persuasion” to commit the crime.

Note: In the event that the State proves predisposition beyond a reasonable doubt, a subjective entrapment claim is defeated. For more on predisposition, click here.

A common question if someone is interested in arguing entrapment (objective or subjective) is – what sort of procedural hoops need to be jumped through? Does a defendant have to file a pretrial motion to dismiss to “preserve” the entrapment defense for appeal (or argue it at trial)? Does a defendant have to give notice to the court at trial (like insanity)?

The answer to all of these questions is no. This is because, according to a recent ruling by Florida’s 2nd District Court of Appeal, a defendant has the right to present an entrapment defense even if they do not give “notice” to the judge that they will do so or file a pretrial motion to dismiss.

Let’s discuss the 2nd DCA’s major ruling in Ayala v. State, 232 So.3d 517 (Fla. 2d. DCA 2017) and what it means for presenting an entrapment defense in Florida.

KEY CASE: Ayala v. State, 232 So.3d 517 (Fla. 2d. DCA 2017) 

In Ayala, the defendant (Ayala) was arrested and charged with various drug offenses. Ayala did not file a pretrial notice to rely upon an entrapment defense, or file a motion to dismiss based on entrapment prior to the trial occurring.

At trial, Ayala was called to the stand. Ayala testified that the confidential informant (CI) who he was accused of selling drugs to consistently harassed and badgered him into eventually making the sale. The State objected to Ayala’s testimony, asserting that he was presenting an entrapment defense without prior notice to the judge.

During a side bar conference with the trial judge, Ayala’s defense counsel said she did not know where in Florida law a “notice to argue entrapment” was required. However, the judge agreed with the State (prosecutor) and advised the attorney to cut Ayala’s testimony “a little short.” The judge said that in the absence of a notice, Ayala could not argue entrapment.

Despite the ruling, Ayala’s lawyer continued to attempt to draw out entrapment-related testimony during direct examination. However, the State objected and the judge sustained it. The defense ceased questioning and rested their case.

At the charge conference and before closing arguments, Ayala argued again (through his defense counsel) that there was no requirement to submit a “notice” to claim entrapment – that this was part of his right to a defense, and the State could introduce rebuttal evidence. However, the trial court disagreed. The jury convicted Ayala without hearing any entrapment-related arguments.

On appeal to the 2nd DCA (Greater Tampa area), Ayala argued the trial judge fundamentally erred by forbidding him to argue that he was entrapped. Ayala claimed that because his defense was undermined by the judge without lawful authority, he did not have a fair trial. 

The 2nd DCA agreed, reversing Ayala’s convictions and remanding to the lower court for a new trial. The 2nd DCA wrote:

“In this case, the trial court erred in barring Mr. Ayala from raising the defense of entrapment. Based on the cases cited above, Mr. Ayala was under no obligation to give the State notice of his intent to rely specifically upon entrapment as a defense. Mr. Ayala’s plea of not guilty was sufficient to notify the State of the possibility that he could raise the defense of entrapment. And any concern regarding the seeming lack of notice could have been addressed by simply allowing the State an opportunity to rebut Mr. Ayala’s entrapment defense. … Accordingly, we conclude that Mr. Ayala was entitled to raise the entrapment defense at trial.”

The 2nd DCA also held that the trial judge’s decision was not “harmless error,” as it “deprived Mr. Ayala of his primary theory of defense.” This required his convictions to be reversed:

“We further conclude that the trial court’s error was harmful because it deprived Mr. Ayala of his primary theory of defense. Regardless of the defense’s likelihood of success, Mr. Ayala was entitled to raise entrapment as a defense and to introduce evidence in support of it…. Accordingly, because the trial court wrongly found as a matter of law that entrapment was not an available defense and that Mr. Ayala was precluded from introducing evidence regarding entrapment to the jury, Mr. Ayala’s right to present his theory of defense was prejudiced.”

In sum, Ayala v. State, 232 So.3d 517 (Fla. 2d. DCA 2017) is a significant development in Florida’s case law surrounding the entrapment defense. The 2nd DCA ruled that a defendant does not need to provide prior “notice” to the court or file a pretrial motion to be allowed to argue they were entrapped.

Florida defendants and defense attorneys should be familiar with the ruling in Ayala v. State, 232 So.3d 517 (Fla. 2d. DCA 2017). If entrapment is raised as a defense at trial, the judge cannot forbid this from being argued on the grounds that no notice was provided. A defendant has the right to present an entrapment defense at a Florida criminal trial.

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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