FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Edward J. Volz, Jr.,
L. Dimmig, II, Public Defender, and Ama N. Appiah, Assistant
Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford
Taylor, Assistant Attorney General, Tampa, for Appellee.
Pito Ayala appeals from his judgment and sentences for sale
or delivery of a controlled substance and possession of
heroin. Because the trial court erred in finding that Mr.
Ayala was prohibited from raising the defense of entrapment,
we reverse and remand for a new trial.
State charged Mr. Ayala with sale or delivery of a controlled
substance and possession of heroin. Mr. Ayala filed a written
plea of not guilty and proceeded to trial. During opening
statements, defense counsel asserted that Mr. Ayala was
"entrapped" into providing drugs to a female police
informant. The State did not object and thereafter presented
its case against Mr. Ayala to the jury. The State's case
relied upon a video recording of the drug transaction and the
testimonies of the police informant, two law enforcement
officers, and a crime laboratory analyst.
the State rested, defense counsel called Mr. Ayala's
girlfriend and Mr. Ayala himself to the stand. The girlfriend
testified, in pertinent part, that she had been a friend of
the informant for over ten years. She further testified that
the informant had been "harassing" Mr. Ayala for
heroin because the informant was "sick" and
suffering from withdrawal. Corroborating his girlfriend's
account, Mr. Ayala testified that the informant had called on
"countless" occasions to acquire drugs. He further
testified that he did not want to acquire drugs for the
informant because the informant was a difficult person, she
was "always calling" him, and he was concerned
about getting her narcotics. The State then objected to Mr.
Ayala's testimony, which prompted the trial court to hold
a bench conference with both parties.
bar, the trial court asked defense counsel whether she had
"file[d] any notice with the State that [Mr. Ayala] was
using the defense of entrapment." When defense counsel
stated that she did not know that filing such a notice was
required, the trial court decided that it was going to
"cut [Mr. Ayala's testimony] a little short."
The trial court reasoned that because defense counsel failed
to file the requisite notice, Mr. Ayala was prohibited from
arguing the defense of entrapment to the jury. The bench
the trial court's ruling, defense counsel continued
attempting to elicit testimony from Mr. Ayala regarding
entrapment. Defense counsel asked Mr. Ayala whether it was
his "practice" to sell narcotics and whether it was
his intent to sell narcotics to the informant. But on both
occasions, the State objected and the trial court sustained
those objections. The defense then rested.
charge conference and before closing arguments, defense
counsel twice argued that Mr. Ayala was not required to
provide any pretrial notice of his intent to rely upon the
defense of entrapment. Relying primarily upon Weaver v.
State, 370 So.2d 1189 (Fla. 4th DCA 1979), defense
counsel contended that the appropriate remedy for the lack of
notice was to permit Mr. Ayala to present his entire
entrapment defense and allow the State to introduce rebuttal
evidence. But again, the trial court rejected defense
counsel's argument and prevented any further argument on
the issue stating, "No. I've ruled. Keep arguing.
I've ruled." The jury was not instructed on
entrapment and found Mr. Ayala guilty as charged. Mr. Ayala
filed a motion for new trial, wherein he raised the same
arguments once more. The trial court denied the motion, and
this appeal followed.
under a plea of not guilty an accused may avail himself of
any defense not required by law to be specifically pleaded,
and all matters of justification and excuse." Ivory
v. State, 173 So.2d 759, 760 (Fla. 3d DCA 1965). The
defense of "entrapment may be raised on a plea of not
guilty." Id.; see also Koptyra v.
State, 172 So.2d 628, 632 (Fla. 2d DCA 1965)
("Within the scope of a defendant's plea of not
guilty he may interpose the defense of entrapment where he is
charged with possession of narcotics."); Pope v.
State, 458 So.2d 327, 329 (Fla. 1st DCA 1984) (on
rehearing) ("A plea of not guilty should not preclude
the defense of voluntary intoxication anymore than it
precludes a defense of entrapment." (citing
Ivory, 173 So.2d at 760)). In fact, "[t]here is
no statute in Florida requiring that the defense of
entrapment be specifically raised by the pleadings."
Ivory, 173 So.2d at 760 n.1; cf., e.g.,
Fla. R. Crim. P. 3.200, 3.201, 3.216 (providing that a
criminal defendant must give the State notice of his or her
intent to rely on certain defenses, including alibi,
battered-spouse syndrome, and insanity, respectively).
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. See Weaver, 370 So.2d at 1191 (explaining
that where the defense of entrapment is not raised until the
charge conference, "the State may introduce rebuttal
evidence of a defendant's predisposition to commit the
crime"). Accordingly, we conclude that Mr. Ayala was
entitled to raise the entrapment defense at trial.
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. See
Ivory, 173 So.2d at 760; see also Mateo v.
State, 932 So.2d 376, 379 (Fla. 2d DCA 2006) (explaining
that "where evidence tends in any way, even indirectly,
to establish a reasonable doubt of defendant's guilt, it
is error to deny its admission" and that, therefore,
"as a general proposition, any evidence that tends to
support the defendant's theory of defense is
admissible"); Morgan v. State, 112 So.3d 122,
125 (Fla. 5th DCA 2013) ("[I]t is neither our role nor
that of the trial court to weigh the sufficiency of that
evidence or rule upon the likelihood of success of the
entrapment defense."). 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. See, e.g., LeBron v. State, 127
So.3d 597, 604 (Fla. 4th DCA 2012) (holding that trial
court's error in refusing to allow defendant to present
evidence on his one main theory of defense--entrapment--was
not harmless); Flynn v. State, 351 So.2d 377, ...