Ayala v. State, Case No. 2D16–3327
| Decision Date | 13 December 2017 |
| Docket Number | Case No. 2D16–3327 |
| Citation | 232 So.3d 517 |
| Parties | German Pito AYALA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Ama N. Appiah, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
German 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.
The 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.
After 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.
At side 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 conference ended.
Despite 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.
At the 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, 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.
"Normally 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) (); Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984) (on rehearing) . 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 ().
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.1 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 (). Accordingly, we conclude that Mr. Ayala was entitled to raise the entrapment defense at trial.
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. See Ivory, 173 So.2d at 760 ; see also Mateo v. State, 932 So.2d 376, 379 (Fla. 2d DCA 2006) (); Morgan v. State, 112 So.3d 122, 125 (Fla. 5th DCA 2013) (). Accordingly, because the trial court wrongly found as a matter of...
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