THE STATE OF FLORIDA, APPELLANT,
v.
FRANCISCO RAMOS, ET AL., APPELLEES
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On remand from the Florida Supreme Court, the Third District Court of Appeal affirmed the dismissal of drug charges against Lazaro Diaz based on entrapment under the subjective test established by Florida Statute Section 777.201. The court held that Diaz was entrapped as a matter of law because he was not predisposed to commit the offense and a government informant had to contact him fifteen or sixteen times to induce his participation.
The court held that Diaz was entrapped as a matter of law under the subjective test. Diaz met his burden of proving that a government agent induced him to commit the offense, and he also established lack of predisposition. Because the factual issues were undisputed, the trial judge had authority to rule on predisposition as a matter of law rather than submitting the issue to the trier of fact.
[1] The objective entrapment test has been eliminated by statute, but entrapment may still be evaluated under the subjective test.
[2] Under the subjective entrapment test, the defendant must first prove by a preponderance of the evidence that a government agent induced the commission of the offense.
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Join FLexlaw to unlock all legal intelligence“an agent of the government induced the accused to commit the offense charged”
Establishes the first prong of the subjective entrapment test under Section 777.201
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Join FLexlaw to unlock all legal intelligenceLazaro Diaz was charged in connection with a drug transaction. A confidential informant contacted Diaz approximately fifteen or sixteen times to persu…
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PER CURIAM.
This case is before us on remand for reconsideration in light of Munoz v. State, 629 So. 2d 90 (Fla.1993).1 Once again, we affirm the trial court’s order dismissing charges against Lazaro Diaz.
In Munoz, the Florida Supreme Court held that the objective entrapment test set forth in Cruz v. State, 465 So. 2d 516 (Fla.), cert, denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), was eliminated by the enactment of Section 777.201, Florida Statutes (1987). The Munoz court, however, stated that the issue of entrapment may be evaluated under the subjective test established by Section 777.201.2
Under the subjective test, we must first determine whether “an agent of the government induced the accused to commit the offense charged.” Mtmoz, 629 So. 2d at 99. In the instant case, Diaz met his burden of proving by a preponderance of the evidence that a government agent induced him to commit the crime charged. The unrebut-ted evidence showed that the confidential informant contacted Diaz approximately fifteen or sixteen times in order to convince him to get involved in the drug transaction.
Since the above question was answered in the affirmative, the next inquiry is whether the defendant was “predisposed to commit the offense charged.” Id. As to this issue, Diaz met his' burden of establishing lack of predisposition. Thereafter, the State failed to rebut this evidence beyond a reasonable doubt. As discussed earlier, the confidential informant had to contact Diaz approximately fifteen or sixteen times in order to persuade him to commit the offense. Moreover, the trial court found that there “was no history, information, or intelligence known to law enforcement of any involvement by [Diaz] in any narcotics activities or drug ‘rip-offs’ before the confidential informant brought [Diaz] into the scheme.”
Section 777.201 provides that the issue of entrapment shall be submitted to the trier of fact. Section 777.201, Fla.Stat. (1991). However, when the factual issues above are not in dispute, “then the trial judge has the authority to rule on the issue of predisposition as a matter of law.” Munoz, 629 So. 2d at 100. In the instant case, the factual issues above are not in dispute; the issue of entrapment does not have to be submitted to the trier of fact. Under the circumstances of this case we find that under the subjective test, Diaz was entrapped as a matter of law.
Accordingly, we affirm the trial court’s order dismissing the charges against Lazaro Diaz.
. This court had previously reversed the trial court's order dismissing charges against defendants Jose Ramos and Francisco Ramos, but affirmed the trial court's order dismissing charges against defendant Lazaro Diaz. State v. Ramos, 608 So. 2d 830 (Fla. 3d DCA 1992). The Florida Supreme Court quashed the portion of the opinion dismissing the charges against Lazaro Diaz and remanded for further reconsideration. State v. Ramos, 629 So. 2d 103 (Fla.1993).
. The Munoz court also held that the judiciary may objectively review "the issue of entrapment to the extent such a review involves the • due process clause of article I, section 9, of the Florida Constitution.” Munoz, 629 So. 2d at 101.
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State v. Blanco, 896 So. 2d 900 (Fla. 4th DCA 2005)…sue. See Robichaud v. State, 658 So. 2d 166 (Fla. 2d DCA 1995) (error to submit subjective entrapment issue to jury where defendant established by testimony at pretrial hearing government’s inducement and his lack of predisposition); State v. Ramos, 632 So. 2d 1078 (Fla. 3d DCA 1994) (testimony at pretrial hearing on defendant’s motion to dismiss established government inducement and his lack of predisposition; not necessary to submit entrapment issue to jury.); Beattie v. State, 636 So. 2d 744 (Fla. 2d DCA 19…
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Jones v. State, 114 So. 3d 1123 (Fla. 1st DCA 2013)…, but an “unwary criminal” who availed himself of the opportunity Deputy Gilmore presented to make money by selling drugs. The trial court therefore did not err by admitting the July 15 video to rebut Appellant’s entrapment claim. Cf. State v. Ramos 632 So. 2d 1078, 1079 (Fla. 3d DCA 1994) (upholding trial court ruling that defendant was not predisposed to commit drug transaction crime, where no prior criminal history or law enforcement intelligence evidenced narcotics activities by defendant, and confidential…
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Nadeau v. State, 683 So. 2d 504 (Fla. 4th DCA 1995)…e burden of proof pursuant to section 777.201 to establish this factor by a preponderance of [*507] the evidence. The evidence was overwhelming in this case that Antar repeatedly induced Nadeau with threats and harassment. See, e.g., State v. Ramos, 632 So. 2d 1078 (Fla.3d DCA 1994) (holding that the defendant proved inducement by a preponderance of evidence where an informant contacted him over a dozen times in order to convince him to get involved). If the first question is answered affirmatively, then the…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cruz v. State, 465 So. 2d 516 (Fla. 1985)
- Munoz v. State, 629 So. 2d 90 (Fla. 1993)
- Wilson v. Florida, 473 U.S. 905 (U.S. 1985)
- Christoffersen et ux. v. United States, 473 U.S. 905 (U.S. 1985)
- State v. Ramos, 629 So. 2d 103 (Fla. 1993)
- State v. Ramos, 608 So. 2d 830 (Fla. 3d DCA 1992)