In State v. Beattie, 629 So.2d 112 (Fla. 1993), the supreme court quashed this court's opinion
In January 1990 Beattie read an advertisement in a local free shopping publication. The ad, placed by U.S. Customs, listed a name and address for a distributor of "hard to find Foreign videos/magazines in Miniature & Young Love." Beattie responded by letter and stated that he was not involved in law enforcement and was interested in movies "with very young people and with Black men, white women." After an exchange of ten letters
Because possession of child pornography was not at that time an offense against the laws of the United States, the customs agent brought the Florida Department of Law Enforcement (FDLE) into this investigation. The FDLE arrested Beattie after it received his check and delivered the videotape to him in the parking lot.
It is undisputed that law enforcement did not know Beattie for any deviant activity or involvement with child pornography until he responded to the advertisement. Customs did not target individuals when it placed the advertisement in the publication. Before the advertisement was run, Customs was aware of one child pornographic videotape which local authorities had seized from a video rental store and one local film developer who reported to local authorities that he had developed a customer's film containing still photographs of nude children.
Beattie filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). Beattie's sworn motion alleged that:
The state filed a demurrer which asserted that "the facts as alleged by the defendant in the Motion to Dismiss constitute a violation of Florida Statute 827.071(5)."
Applying the Munoz test to this case, we again conclude that Beattie was entrapped as a matter of law. By his sworn motion, Beattie satisfied his burden on the first question by proving that an agent of the government induced Beattie to commit the offense of possession of illegal contraband relating to a sexual performance by a child. On the second question, Beattie established, by his sworn motion, that he had no predisposition to commit this crime before the agent or law enforcement contacted him. Thereafter, the state had the burden to establish by evidence beyond a reasonable doubt that Beattie did possess a predisposition to commit this crime. Here, the state produced no such evidence. Based upon the application of the evidence to the first two questions in Munoz, especially the lack of any state evidence to prove that Beattie possessed a predisposition to commit the crime, we again conclude that the trial court erred in denying Beattie's motion to dismiss. Therefore, it is unnecessary for this court to address whether the jury was entitled to determine the issue of entrapment.
Reversed and remanded with directions to dismiss the charge against Beattie.
HALL, A.C.J., and PATTERSON, J., concur.