Opinion
No. 91-1761.
June 2, 1992.
An Appeal from the Circuit Court for Bay County; N. Russell Bower, Judge.
John F. Daniel, of Daniel Komarek, Panama City, for appellant.
Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.
We affirm on the basis of State v. Munoz, 586 So.2d 515 (Fla. 1st DCA 1991), review granted, Case No. 78,900 (Fla. April 30, 1992), and Simmons v. State, 590 So.2d 442 (Fla. 1st DCA 1991), which was authored by Judge Wolf. We again certify the following question as one of great public importance:
HAS THE OBJECTIVE ENTRAPMENT TEST SET FORTH IN CRUZ V. STATE, 465 So.2d 516 (Fla. 1985), cert. denied, 473 U.S. 905, 105, S.Ct. 3527, 87 L.Ed.2d 652 (1985), BEEN ABOLISHED BY THE ENACTMENT OF SECTION 777.201, FLORIDA STATUTES (1987)?
MINER, J., concurs.
WOLF, J., specially concurs, with opinion.
As I stated in the opinion on the motion for rehearing in Simmons v. State, 590 So.2d 442 (Fla. 1st DCA 1991), it is necessary for the supreme court to specifically address the constitutionality and applicability of section 777.201, Florida Statutes (1987). Until the supreme court directs otherwise, it is still my belief that there is a level of police conduct which would have constituted objective entrapment pursuant to Cruz v. State, 465 So.2d 516 (Fla. 1985), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), that is not so egregious as to violate due process and which no longer constitutes entrapment after the passage of section 777.201, Florida Statutes (1987). Unless this statute is declared to be unconstitutional, we must give deference to the obvious intent of the Legislature.