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Fla. Stat. § 812.028 (2025)

Defenses precluded.

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812.028 Defenses precluded.—It shall not constitute a defense to a prosecution for any violation of the provisions of ss. 812.012-812.037 that:
(1) Any stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed.
(2) A facility or an opportunity to engage in conduct in violation of any provision of this act was provided.
(3) Property that was not stolen was offered for sale as stolen property.
(4) A law enforcement officer solicited a person predisposed to engage in conduct in violation of any provision of ss. 812.012-812.037 in order to gain evidence against that person, provided such solicitation would not induce an ordinary law-abiding person to violate any provision of ss. 812.012-812.037.
History.—s. 10, ch. 77-342.
Notes of Decisions
Cited in 13 cases, 1979–2000 · leading case: Cruz v. State, 465 So. 2d 516 (Fla. 1985).
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Cruz v. State, 465 So. 2d 516 (Fla. 1985). · cites it 4× “In Dickinson , we upheld the constitutionality of section 812.028(4), Florida Statutes (1977), which provided: It shall not constitute a defense to a prosecution for any violation of the provisions of ss.”
State v. Dickinson, 370 So. 2d 762 (Fla. 1979). · cites it 5× “The trial court also invalidated Section 812.028 on another basis, finding that it "gives the government an opportunity to create crime rather than prevent it" and eliminates the defense of entrapment.”
State v. Olkon, 299 N.W.2d 89 (Minn. 1980). · cites it 2× “Cons. Stat. Ann. § 313 (Purdon 1973); Tex.”
State v. Rios, 409 So. 2d 241 (Fla. 3d DCA 1982). · cites it 4× “…and, by statute, has rejected the defense in prosecutions, as here, for endeavoring to traffic in stolen property. § 812.028(3), Fla. Stat. (1979).”
Herrera v. State, 594 So. 2d 275 (Fla. 1992). · cites it 3× “§ 812.028(4), Fla. Stat. (1977). This Court found that act, including its codification of entrapment, constitutional in State v.”
In re Stan. Jury Instr. in Crim. Cases, 543 So. 2d 1205 (Fla. 1989). · cites it 2× “The effect of Section 812.028(3), Florida Statutes, is not provided for in the current instructions.”
Vermette v. Ludwig, 707 So. 2d 742 (Fla. 2d DCA 1997). “But by virtue of section 812.028(1) and (3), Florida Statutes (1991), neither law enforcement's use of a stratagem or deception in making an arrest, nor the fact that property that was not stolen was offered for sale as stolen, constitutes a defense to the charge of dealing in…”
Capaldo v. State, 679 So. 2d 717 (Fla. 1996). · cites it 2× “" § 812.028(3), Fla. Stat. (1995). Florida courts have consistently upheld convictions for endeavoring to traffic in stolen property without proof that the property was actually stolen.”
State v. Skinner, 397 So. 2d 389 (Fla. 1st DCA 1981). · cites it 2× “See Section 812.028, Florida Statutes (1977), and State v.”
State v. Wynn, 433 So. 2d 1341 (Fla. 2d DCA 1983). · cites it 6× “The legislature codified the particular situation we are faced with in the instant case in section 812.028. The section specifically provides: 812.”
Marino v. State, 392 So. 2d 36 (Fla. 2d DCA 1980). · cites it 4× “Appellant asserts for the first time on this appeal that section 812.028(3), Florida Statutes (1979), is unconstitutionally over-broad in violation of the first amendment of the United States Constitution and article I, sections 4 and 9, of the Florida Constitution.”
Lamar v. Keesee, 512 So. 2d 1066 (Fla. 5th DCA 1987). “Section 812.028(3) provides that It shall not constitute a defense to a prosecution for any violation of the'provisions of ss.”
Show all 13 citing cases →
812.028(1): 1 case
Vermette v. Ludwig, 707 So. 2d 742 (Fla. 2d DCA 1997). “But by virtue of section 812.028(1) and (3), Florida Statutes (1991), neither law enforcement's use of a stratagem or deception in making an arrest, nor the fact that property that was not stolen was offered for sale as stolen, constitutes a defense to the charge of dealing in…”
812.028(3): 6 cases
State v. Rios, 409 So. 2d 241 (Fla. 3d DCA 1982). “…and, by statute, has rejected the defense in prosecutions, as here, for endeavoring to traffic in stolen property. § 812.028(3), Fla. Stat. (1979).”
In re Stan. Jury Instr. in Crim. Cases, 543 So. 2d 1205 (Fla. 1989). “The effect of Section 812.028(3), Florida Statutes, is not provided for in the current instructions.”
Capaldo v. State, 679 So. 2d 717 (Fla. 1996). “" § 812.028(3), Fla. Stat. (1995). Florida courts have consistently upheld convictions for endeavoring to traffic in stolen property without proof that the property was actually stolen.”
State v. Wynn, 433 So. 2d 1341 (Fla. 2d DCA 1983). “The legislature codified the particular situation we are faced with in the instant case in section 812.028. The section specifically provides: 812.”
Marino v. State, 392 So. 2d 36 (Fla. 2d DCA 1980). “Appellant asserts for the first time on this appeal that section 812.028(3), Florida Statutes (1979), is unconstitutionally over-broad in violation of the first amendment of the United States Constitution and article I, sections 4 and 9, of the Florida Constitution.”
812.028(4): 4 cases
Cruz v. State, 465 So. 2d 516 (Fla. 1985). “In Dickinson , we upheld the constitutionality of section 812.028(4), Florida Statutes (1977), which provided: It shall not constitute a defense to a prosecution for any violation of the provisions of ss.”
State v. Dickinson, 370 So. 2d 762 (Fla. 1979). “The trial court also invalidated Section 812.028 on another basis, finding that it "gives the government an opportunity to create crime rather than prevent it" and eliminates the defense of entrapment.”
Herrera v. State, 594 So. 2d 275 (Fla. 1992). “§ 812.028(4), Fla. Stat. (1977). This Court found that act, including its codification of entrapment, constitutional in State v.”
State v. Wynn, 433 So. 2d 1341 (Fla. 2d DCA 1983). “The legislature codified the particular situation we are faced with in the instant case in section 812.028. The section specifically provides: 812.”
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This Florida statute resource is curated by Florida Bar member Graham W. Syfert, a Jacksonville, Florida criminal defense attorney (Florida Bar No. 39104). Attorney Syfert regularly handles Chapter 812 matters in the context of theft, robbery, and property crime defense and represents clients throughout Northeast Florida. For legal consultation, call 904-383-7448.