Opinion
No. 1519.
June 11, 1968.
Appeal from the Court of Record for Broward County, John G. Ferris, J.
Richard Alan Radis, Fort Lauderdale, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal by the defendant, Roy Thomas McDade, from a judgment and sentence following a jury trial and conviction on a charge of unlawfully selling a quantity of a narcotic drug, to-wit: cannabis, also known as marijuana.
The sole point raised on appeal is whether the trial court committed error in denying appellant's request for a jury instruction on the defense of entrapment.
The trial court, holding that the evidence was insufficient to raise the issue of entrapment, denied the instruction on the authority of Koptyra v. State, Fla.App. 1965, 172 So.2d 628. Our review of the record leads us to the conclusion that it was error for the trial court to deny defendant's request for instruction on this defense. While the evidence is conflicting, there is sufficient competent evidence which if believed by the jury, would sustain defendant's theory of the defense of entrapment. This being so, defendant is entitled to have the jury instructed upon his theory of the case. Holley v. Kelley, Fla. 1957, 91 So.2d 862.
The judgment and sentence are severally vacated and the cause remanded for a new trial.
WALDEN, C.J., and REED, J., concur.