Alcorn v. State, 121 So. 3d 419, 422 (Fla. 2013) (“[T]o show prejudice, the defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.”

The trial court’s denial of a continuance based on Jordan’s retention of private counsel was an abuse of discretion. See Hill v. State, 157 So. 3d 481, 482 (Fla. 2d DCA 2015). “The Sixth Amendment of the United States Constitution protects the right of a criminal defendant to be represented by the attorney of his or her own choosing.” Alvarez v. State, 75 So. 3d 420, 422 (Fla. 4th DCA 2011); accord Brown v. State, 38 So. 3d 212, 214 (Fla. 2d DCA 2010). In considering a motion for continuance to retain counsel of defendant’s choosing, “the trial court must conduct ‘an adequate inquiry into the surrounding circumstances.’ “ Valcarcel v. State, 201 So. 3d 795, 797-98 (Fla. 4th DCA 2016) (quoting Deal v. State, 145 So. 3d 212, 214 (Fla. 4th DCA 2014)). Where the motion for continuance involves recently retained counsel, the trial court should consider:

[(1)] the time available for preparation, [(2)] the likelihood of prejudice from the denial, [(3)] the defendant’s role in shortening preparation time, [(4)] the complexity of the case, [(5)] the availability of discovery, [(6)] the adequacy of counsel actually provided[,] and [(7)] the skill and experience of chosen counsel and his pre-retention experience with either the defendant or the alleged crime.

Santiago v. State, 395 So. 3d 667, 670 (Fla. 2d DCA 2024) (seventh alteration in original) (quoting McKay v. State, 504 So. 2d 1280, 1282 (Fla. 1st DCA 1986)). Consideration of these factors allows the court to balance a defendant’s right to be represented by counsel of his choosing with the “countervailing interests involving effective administration of the courts.” McKay, 504 So. 2d at 1282.

Section 790.23(1)(a), Florida Statutes (2023), makes it unlawful for a convicted felon “to own or to have in his or her care, custody, possession, or control any . . . electric weapon or device . . . .” An “‘[e]lectric weapon or device’ means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.” § 790.001(7), Fla. Stat. (2023). Contrary to Smith’s contention, the statute contains no requirement that the device be “operable.” Rather, according to the statutory definition, Smith’s taser qualifies as an electric weapon or device if it is simply designed to be used for defensive purposes through the application or use of electrical current. It does not have to work.

In Emerson, Judge Tannenbaum reasoned, in short, that in light of the constitutional protection of the right to appeal in article V, section 4(b) of the Florida Constitution, subsection e of Rule 9.140(b)(2)(A)(ii), allowing appeals “as otherwise provided by law,” is broad enough to encompass a direct appeal alleging an error in the sentencing process, provided the error “is properly preserved, as context dictates,” and the right to appeal has not been otherwise waived or forfeited.

Although the courts agree that the outright refusal to allow a defendant to present matters in mitigation is reversible error, there appears to be some disagreement over how much of a defendant’s presentation a court is required to entertain. For example, in Hodierne, the Second District reversed and remanded for a new sentencing hearing where the trial court allowed the defendant to begin reading a prepared statement but did not allow the defendant to read the full statement. 141 So. 3d at 1255. The First District affirmed, however, as harmless error, where a court reluctantly heard some evidence but declined to hear other evidence. Barry v. State, 330 So. 2d 512, 513 (Fla. 1st DCA 1976). But we need not settle that dispute in this case because the evidence that the defendant attempted to introduce in this case was not within the scope of rule 3.720(b). Appellant’s testimony was not relevant to his sentence.

“Circumstances recognized as sufficient to meet the test of authenticity include when a letter is written disclosing information which is likely known only to the purported author.” State v. Love, 691 So. 2d 620, 621 (Fla. 5th DCA 1997). Here, the trial court did not abuse its discretion in admitting the text messages because the information contained therein was known only to Rolle.

The State possesses wide discretion in exercising a nolle prosse. After all, “ ‘[t]he decision to file a nolle prosse is within the sole discretion of the [S]tate,’ and a nolle prosequi is self-executing.” Spicer v. State, 318 So. 3d 1269, 1270 (Fla. 2d DCA 2021) (second alteration in original) (first quoting State v. Braden, 375 So. 2d 49, 50 (Fla. 2d DCA 1979); and then citing State v. Aguilar, 987 So. 2d 1233, 1235 (Fla. 5th DCA 2008)).

The State’s discretion to nolle prosse a charge, however, is not unbridled. Indeed, the State may not nolle prosse a charge after the jury is sworn and jeopardy has attached. See, e.g., State v. Oliff, 396 So. 3d 804, 805 (Fla. 1st DCA 2024) (”[A] nolle prosequi may be filed at any time prior to the swearing in of the jury.” (quoting State v. Kahmke, 468 So. 2d 284, 285 (Fla. 1st DCA 1985))); Aguilar, 987 So. 2d at 1234-35 (”At common law the State has the discretion to announce a nolle prosequi at any time prior to the swearing of the jury to try the cause.”).

As particularly relevant to Mr. Aldacosta’s Count I conviction, the State may not nolle prosse a conviction following return of the jury’s verdict. See Muhammad v. State, 99 So. 3d 964, 964 (Fla. 3d DCA 2011) (”The State’s election to nolle pros the defendant’s organized fraud conviction after the jury returned a verdict is a nullity . . . .”).

Expectation 3.11, which directs lawyers not to prevent a deponent from answering a question unless there is a legal privilege, is amended to add two other exceptions: when the instruction not to answer is “necessary to enforce a limitation on evidence directed by the court,” and when the instruction is made “in connection with a motion to terminate or limit the examination of a deponent.”

On remand, Saffold moved to withdraw his pleas to all seven counts, arguing that he had good cause under Florida Rule of Criminal Procedure 3.170(f). Saffold II, 374 So. 3d at 838. This rule provides that “[t]he court . . . shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn.” Fla. R. Crim. P. 3.170(f). The trial court denied the motion and reimposed the same overall prison terms—albeit structured differently and without certain designations and mandatory minimums. Saffold II, 374 So. 3d at 838.

We begin by briefly outlining the varying standards governing plea withdrawal at different stages of a criminal case. A defendant may withdraw his plea for any reason before the court formally accepts it. Fla. R. Crim. P. 3.172(g). Once the court accepts the plea, a defendant may withdraw it “before a sentence” is imposed if he can show “good cause.” Fla. R. Crim. P. 3.170(f).

However, following rendition of the sentence, the standard becomes more stringent. At that point, a plea can only be withdrawn for five specified reasons listed in rule 9.140 of the Florida Rules of Appellate Procedure.3 See Fla. R. Crim. P. 3.170(l). We have used the terms “manifest injustice” or “prejudice” to describe what a defendant must show to obtain relief in this postsentencing context. See Campbell v. State, 125 So. 3d 733, 735 (Fla. 2013). Finally, on collateral review, a defendant can only challenge his plea on the basis that it was involuntary. Fla. R. Crim. P. 3.850(a)(5).

These rules reflect that early in a criminal case, a defendant has the most freedom in seeking to withdraw a plea—consistent with a preference for trial on the merits. Fla. R. Crim. P. 3.172(g); Fla. R. Crim. P. 3.170(f); Stewart v. State, 315 So. 3d 756, 758 (Fla. 4th DCA 2021). But as the case proceeds, the grounds for withdrawal narrow, and the required showing becomes more demanding. Fla. R. Crim. P. 3.170(l); Fla. R. Crim. P. 3.850(a)(5).

This makes sense because finality interests are essential to the criminal justice system. See Teague v. Lane, 489 U.S. 288, 309 (1989) (“Without finality, the criminal law is deprived of much of its deterrent effect.”); Witt v. State, 387 So. 2d 922, 925 (Fla. 1980) (“The importance of finality in any justice system, including the criminal justice system, cannot be understated.”); Calderon v. Thompson, 523 U.S. 538, 555 (1998) (“Finality is essential to both the retributive and the deterrent functions of criminal law.”); Prost v. Anderson, 636 F.3d 578, 582 (10th Cir. 2011) (“The principle of finality, the idea that at some point a criminal conviction reaches an end, a conclusion, a termination, ‘is essential to the operation of our criminal justice system.’ ” (quoting Teague, 489 U.S. at 309)).

As Saffold correctly observes, we have recognized that resentencing is a de novo proceeding. See, e.g., State v. Manago, 375 So. 3d 190, 202 (Fla. 2023); State v. Fleming, 61 So. 3d 399, 405-08 (Fla. 2011); Preston v. State, 607 So. 2d 404, 408 (Fla. 1992). Indeed, we recently stated that a sentence vacatur “nulli[fies]” the “prior sentence,” State v. Okafor, 306 So. 3d 930, 933 (Fla. 2020) (quoting Teffeteller v. State, 495 So. 2d 744, 745 (Fla. 1986)), or “wipe[s] the slate clean” as to the vacated sentence. Id. (quoting Pepper v. United States, 562 U.S. 476, 507 (2011)).

In light of that legal effect, de novo resentencing thus means that the parties may present new evidence and new arguments about the proper sentence to be imposed. Fleming, 61 So. 3d at 406 (“[B]oth parties may present new evidence bearing on the sentence.”); Shine v. State, 273 So. 3d 935, 937 (Fla. 2019) (defendant permitted to assert new grounds for downward departure sentence at resentencing).

Critically, these de novo resentencing principles say nothing about the validity of the convictions upon which the sentences are based… this makes sense because any post-appeal alteration to the conviction itself would be beyond the scope of the remand instruction. Mosley v. State, 397 So. 3d 1001, 1005 (Fla. 2024) (noting that defendant’s attack on his conviction was beyond the scope of remand that pertained solely to the penalty for the relevant offense).

Kent’s argument that the trial court erred in denying his motion for mistrial… the “evidential spillover” from the acquitted DWLS charge to the remaining charges was inherently prejudicial to warrant a mistrial.

Kent failed to establish the evidentiary spillover from the acquitted DWLS charge to the remaining charges was so prejudicial that mistrial was warranted. “Dismissal of some counts charged in the indictment does not automatically warrant reversal of convictions reached on remaining counts.” United States v. Prosperi, 201 F.3d 1335, 1345 (11th Cir. 2000). “Rather, a reviewing court must consider whether the convictions were the result of prejudicial spillover: that is, was there evidence (1) that would not have been admitted but for the dismissed charges and (2) that was improperly relied on by the jury in their consideration of the remaining charges.” Id. (emphasis added); see also United States v. Cross, 308 F.3d 308, 317 (3d Cir. 2002).

As to the first prong, evidence that still would have been admissible for the other charges does not result in prejudicial spillover. See Prosperi, 201 F.3d at 1345–46. The State’s only evidence for the DWLS charge was Kent’s own admission he did not have a valid driver’s license, which contradicted his earlier statements to the officer that he did have a Michigan license, but did not have it on him. These statements are admissible as evidence of Kent’s consciousness of guilt and knowledge to prove the possession charges. See § 90.401, Fla. Stat. (2022); § 90.402, Fla. Stat. (2022); State v. Martin, 277 So. 3d 265, 268 (Fla. 3d DCA 2019) (citation modified) (“Evidence of a defendant’s statements calculated to defeat or avoid his prosecution is admissible against him as showing consciousness of guilt.”); Garcia v. State, 373 So. 3d 1213, 1235 (Fla. 3d DCA 2023) (emphasis in original) (citation omitted) (“Certainly, a defendant’s false exculpatory statements made to the police to avoid prosecution for a crime constitute ‘substantive evidence tending to affirmatively show a consciousness of guilt on [the defendant’s] part’ for committing that crime.”). Accordingly, Kent fails to satisfy the first prong of the prejudicial spillover analysis.

As to the second prong, we consider several factors in determining whether prejudice tainted the jury’s verdict: (1) whether the jury meticulously sifted the evidence admitted for all counts, which can be signaled by a discriminating acquittal; (2) whether the contested evidence was “inflammatory in nature”; (3) whether the evidence significantly altered the defendant’s trial strategy; and (4) the strength of the evidence against the defendant as to the remaining counts. See Prosperi, 201 F.3d at 1346. Additionally, limiting instructions to the jury may provide further assurance that the jury did not consider improper evidence. See id. at 1347.

For many years our case law has been clear that evidence of flight or concealment may be admissible to establish consciousness of guilt. United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). The instruction may be given when the evidence could lead a reasonable jury to find that the defendant fled in order to avoid apprehension for the charged crime. See Williams, 541 F.3d at 1089. In Myers, the former Fifth Circuit explained that the probative value of flight as circumstantial evidence of guilt “depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” 550 F.2d at 1049. We’ve indicated that a district court does not abuse its considerable discretion by giving a jury a flight instruction if it tells the jury that it must determine whether the evidence proved flight and explains to the jury “the potential weaknesses in the Myers chain of inferences.” United States v. Borders, 693 F.2d 1318, 1328 (11th Cir. 1982).

The court employed the Circuit’s pattern instruction, telling the jury that it had to decide whether Hamilton’s conduct actually demonstrated flight and what weight it ought to give his conduct in light of all of the other evidence presented. Borders, 693 F.2d at 1328 (affirming where the court “correctly cautioned the jury that it was up to them to determine whether the evidence proved flight and the significance, if any, to be accorded such a determination”). Indeed, the district court explained that Hamilton’s flight could have been for other reasons “fully consistent with innocence.” Hamilton never raised any objection to the trial court’s wording.

FOOTNOTE 2

The district court instructed the jury this way:

Intentional flight by a person during or immediately after a crime has been committed or after he is accused of a crime is not, of course, sufficient in itself to establish the guilt of that person.

Whether or not the defendant’s conduct constituted flight is exclusively for you as the jury to determine.

And if you do so determine whether or not that flight showed a consciousness of guilt on his part, and the significance to be attached to that evidence are also matters exclusively for you as a jury to determine.

I remind you that in your conversation of any evidence of flight, if you should find that there was flight, you should also consider that there may be reasons . . . which are fully consistent with innocence.

These may include fear of being apprehended, unwillingness to confront the police, or reluctance to confront the witness.

And may I suggest to you that a feeling of guilt does not necessarily reflect actual guilt of a crime which you are considering.

The principal theory only gets the State so far in that it allows the jury to consider the evidence against the son to find him guilty as charged or guilty of one of the lesser-included offenses. What the son cannot be found criminally culpable of as a principal, though, is the criminal enhancements of possession and discharge of a firearm. See State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla. 1992) (“We hold that, when a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.”); id. (rejecting the “State’s contention that . . . [the defendant’s] sentence should be enhanced on the theory of constructive or vicarious possession based on the conduct of the codefendant” where the evidence “plainly establishe[d]” defendant did not “have personal possession” of a gun “during the commission of the felony”). Here, there was only evidence sufficiently shown that the son possessed a firearm and not that he discharged one, and he cannot be guilty of the discharge enhancement as a principal.

When co-defendants are tried jointly, there is a chance that one defendant may be found guilty by the jury of a lesser offense than another defendant. That is what happened in this case where the jury found the son guilty of the lesser-included offense of attempted aggravated battery with possession and discharge of a firearm but the father guilty of an even lesser-included offense of aggravated assault. This seeming inconsistency in the verdicts though is not true inconsistency and is generally allowed in Florida. State v. Powell, 674 So. 2d 731, 732–33 (Fla. 1996) (“As a general rule, inconsistent jury verdicts are permitted in Florida.”); id. at 733 (“Inconsistent verdicts against jointly tried conspirators are not truly inconsistent and we find no compelling reason to except such verdicts from the general rule.”). The supreme court has reasoned that

[i]nconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant. Moreover, defendants have adequate procedural and constitutional protections to ensure that their convictions are not erroneous, whereas the State does not have the benefit of any reciprocal protections.

Id. (internal citations omitted). See also Eaton v. State, 438 So. 2d 822 (Fla. 1983) (approving seemingly inconsistent verdicts of jointly tried co-defendants where the evidence was sufficient to sustain a conviction of the charged offense against each defendant).

Neumann v. State, 156 So. 237, 239 (1934) (“A principal in the second degree is one who aids in the commission of a felony . . . by being present, aiding and abetting the commission of the felony at the time it is perpetrated.” (emphases supplied) (internal quotations omitted)); State v. Lowery, 419 So. 2d 621, 623 (1982) (defining a second-degree principal as a “person who does not commit the crime with his own hands but is present, aiding and abetting the actual perpetrator”); Staten v. State, 519 So. 2d 622, 624 (Fla. 1988) (“[T]o be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” (emphasis supplied)); cf. Williams v. State, 314 So. 3d 775, 782–83 (Fla. 1st DCA 2021) (differentiating a principal in the second degree who aids or abets a crime from an accessory before the fact who merely promotes or incites a crime based on that person’s actions and his temporal and physical proximity to the offense). Here, the State sufficiently demonstrated a prima facie case that the son was guilty as a principal as the evidence showed he drove his father to and from the Marathon to commit the offense and flee the scene; the son ran alongside his father to confront Carnes and Carter; and both the son and his father possessed firearms and pointed them at Carnes and Carter during the altercation. So, the fact that the father was the only one to discharge a firearm is of no moment here as the son clearly aided his father’s actions.

The supreme court has also further explained that it is immaterial whether the charging document explicitly names the defendant as a principal: a person is a principal in the first degree whether he actually commits the crime or merely aids, abets or procures its commission, and it is immaterial whether the indictment or information alleges that the defendant committed the crime or was merely aiding or abetting in its commission, so long as the proof establishes that he was guilty of one of the acts denounced by the statute.

State v. Roby, 246 So. 2d 566, 571 (Fla. 1971) (emphasis supplied). “The principals instruction may be given if the evidence adduced at trial supports such an instruction.” McGriff v. State, 12 So. 3d 894, 895 (Fla. 1st DCA 2009). It is of no moment whether the verdict form expressly includes the term “principal”; where there are co-defendants and “[t]he jury’s verdict was a general verdict . . ., if the evidence was sufficient to prove either count of the . . . [charging document,] the verdict should not be disturbed.” Jimenez v. State, 30 So. 2d 292, 297 (Fla. 1947).

A jury is allowed to draw reasonable inferences from the evidence presented at trial, and where a jury can make such inferences from the evidence to determine the guilt of a defendant, the facts must be decided upon by the jury, not the court. See Sanchez v. State, 182 So. 645, 648 (Fla. 1938) (“If the evidence is conflicting or will admit of different reasonable inference, or if there is evidence to prove the issue, it should be submitted to the jury as a question of fact to be determined by them, and not taken from the jury and passed upon by the court as a question of law.” (emphases supplied)); see also Davis v. State, 2 So. 3d 952, 967 (Fla. 2008) (finding that the evidence supported conviction of guilt where “the jury reasonably could have inferred” from the evidence that the defendant committed the crime.) However, a jury may not draw an inference from an inference rather than from the evidence presented by the parties. In such a situation, the court will find that the evidence is insufficient to support a conviction. See Gustine v. State, 97 So. 207, 208 (Fla. 1923) (holding that the evidence presented at trial was “not of the conclusive nature required to sustain the verdict” where “[o]nly by pyramiding assumption upon assumption and intent upon intent can the conclusion necessary for conviction be reached”); Baugh v. State, 961 So. 2d 198, 205 (Fla. 2007) (“[E]vidence is insufficient to support a conviction when it requires pyramiding of assumptions or impermissibly stacked inferences”).

“A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial. A ruling on a motion for mistrial is within the trial court’s discretion.” Hamilton v. State, 703 So. 2d 1038, 1041 (Fla. 1997) (citation omitted).1 In the present case, Quesada’s co-defendant’s inadvertent, fleeting, and vague reference to a discussion about planning another robbery was not so prejudicial as to vitiate the entire trial. See, e.g., Smiley v. State, 295 So. 3d 156, 169 (Fla. 2020) (holding that co-perpetrator’s “vague reference to ‘when we normally operate like that’ [when questioned why he thought the defendant had gloves with him at the time of the murder] lacked any detail about other crimes and does not come close to meeting the high standard that justifies a mistrial”); Cole v. State, 701 So. 2d 845, 853 (Fla. 1997) (holding that witness’s statement that she “knew some history on” the defendant was “isolated and inadvertent and was not focused upon” and did not require a mistrial); cf. Music v. State, 398 So. 3d 436, 444 (Fla. 4th DCA 2024) (explaining that erroneous admission of Williams2 rule evidence was harmful where “the co-defendant not only testified that he and appellant had previously burglarized cars, but he testified that they had done so ‘forty or fifty times.’ This was extremely prejudicial, as it painted appellant as a serial burglar.”); Morton v. State, 972 So. 2d 1088, 1089 (Fla. 5th DCA 2008) (reversing conviction for sale of cocaine after confidential informant testified that “a lot of folks knew” the defendant was a drug dealer).

Since the offense of which Maxey was convicted is not one of the offenses listed in section 943.04354, and Maxey also was more than four years older than the perceived victim of his offense at the time of the offense, Maxey did not qualify for consideration of removal from the sex offender registry under section 943.04354, and the trial court was correct to vacate its prior order granting Maxey’s motion.

In the wake of a Florida Supreme Court opinion clarifying the issue, our courts have recognized that “a defendant is not entitled to retain his youthful offender status after his violation of probation and adult sentencing.” Kendall v. State, 262 So. 3d 824, 825 (Fla. 4th DCA 2019) (citing Eustache v. State, 248 So. 3d 1097, 1102 (Fla. 2018)).

Eustache v. State, 248 So. 3d 1097 (Fla. 2018)

For the reasons that follow, we hold that upon revocation of a youthful offender's probation for a substantive violation, the trial court is authorized to either impose another youthful offender sentence, with no minimum mandatory, or to impose an adult Criminal Punishment Code (CPC) sentence, which would require imposition of any minimum mandatory term of incarceration associated with the offense of conviction. Because the trial judge in this case was convinced by the parties that he lacked the discretion to reimpose a youthful offender sentence, Eustache is entitled to a new sentencing proceeding. Because the Fourth District affirmed the sentence, we quash the decision below and remand for further proceedings consistent with this opinion.

Where a trial court errs in overruling a defense objection to a prosecutor’s incorrect statement of law, the error can be harmless if:

(1) The misstatement was presented to the jury in the context of closing argument by an advocate, not in the context of an instruction by the court; (2) the misstatement was an innocent one—the prosecutor was struggling with a subtle rule of law that is difficult to articulate; (3) although the prosecutor repeated the incorrect statement to the jury … [the prosecutor] minutes later read the proper instruction … ; (4) immediately following the prosecutor’s … improper statement, the court announced before the jury that (a) the court would be instructing them on the law, (b) they were to follow only its instructions, and (c) what the lawyers say is neither evidence nor law; (5) before the jury retired, the court also read the standard instruction to the jury; and (6) the jury took a copy of the standard instruction into the jury room during deliberations.

Almeida v. State, 748 So. 2d 922, 927 (Fla. 1999).

The defendant nevertheless argues “[h]armful error has regularly been found when a jury is incorrectly instructed that a defendant had a duty to retreat,” relying on McGriff v. State, 160 So. 3d 167, 168-69 (Fla 1st DCA 2015), and Andujar-Ruiz v. State, 205 So. 3d 803, 806-07 (Fla. 2d DCA 2016). However, McGriff and Andujar-Ruiz are distinguishable because both cases involved the trial court incorrectly instructing the jury on the duty to retreat. Here, the prosecutor incorrectly implied the defendant had a duty to retreat.

The defendant further argues the prosecutor’s comment was harmful because it went directly to “the only element at issue,” citing Owens v. State, 261 So. 3d 585, 589 (Fla. 4th DCA 2018), and Young v. State, 137 So. 3d 532, 535 (Fla. 4th DCA 2014). However, Owens and Young are distinguishable because neither case indicates that, after the prosecutor had misstated the law, the trial court later provided the correct law. Here, only the prosecutor had incorrectly implied the defendant had a duty to retreat, while the circuit court later correctly instructed the jury that the defendant had no duty to retreat.

Underlying Perry are two premises. One is factual and the other legal, but both are content based. First, while Perry recognizes that a testifying defendant has a constitutional right during a midtestimony recess to consult with his lawyer about a Underlying Perry are two premises. One is factual and the other legal, but both are content based. First, while Perry recognizes that a testifying defendant has a constitutional right during a midtestimony recess to consult with his lawyer about a wide range of topics—“the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain,” id., at 284—it posits that a short break in a defendant’s appearance on the witness stand is unlikely to feature such topics. Instead, such a pause will likely contain discussion of “nothing but the testimony.” Ibid. So, then, Perry’s second (correlative) premise emerges: A midtestimony defendant does not have a protected Sixth Amendment right to discuss his ongoing testimony with his lawyer. Put differently, where no nontestimony topics are involved, the Sixth Amendment provides no constitutional right to consultation during breaks in the defendant’s testimony. Id., at 281.

Geders, 425 U. S., at 91 (explaining that any conflict between the Sixth Amendment and the desire for untutored testimony must “be resolved in favor of the right to the assistance and guidance of counsel”). For example, a court cannot prohibit a defendant from obtaining his attorney’s advice on whether and why he should consider a guilty plea—even if the “why” includes the impact of his ongoing testimony on the trial’s prospects. The Sixth Amendment does not abide a take-myword-for-it vision of the attorney-client relationship. It does, however, tolerate a midtestimony conferral order prohibiting discussion of testimony as such, lest that discussion shape future testimony “in light of the testimony already given.” Id., at 87. The no-testimony-management order entered here falls on the constitutional side of that line.

“[B]efore he begins to testify,” a defendant “has an absolute right” to confer with his lawyer. Perry, 488 U. S., at 281; accord, Geders, 425 U. S., at 88. Once he begins to testify, what was absolute becomes qualified, as “the testifying defendant does not have a constitutional right to advice” about his “ongoing testimony.” Perry, 488 U. S., at 284. But the testifying defendant “does have a constitutional right to discuss” “matters that go beyond the content of [his] own testimony,” even though “such discussions will inevitably include some consideration of the defendant’s ongoing testimony.” Ibid.; accord, Geders, 425 U. S., at 88, 91. We say no more than that today.

The defense of subjective entrapment is codified in section 777.201, Florida Statutes (2024). Entrapment occurs when law enforcement employs methods of persuasion or inducement which create “a substantial risk that such crime will be committed by a person other than one who is ready to commit it.” § 777.201(1), Fla. Stat. A court considers two questions of fact in determining whether entrapment has occurred: (1) improper inducement by law enforcement and (2) the defendant’s lack of predisposition to commit the offense charged. See Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993).

See United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994) (“Neither mere solicitation nor the creation of opportunities to commit an offense comprises inducement as that term is used in entrapment jurisprudence.”); Cantrell v. State, 132 So. 3d 931, 932 (Fla. 1st DCA 2014) (“A mere invitation under false pretenses is not synonymous with inducement.”), quashed on other grounds, No. SC14-565, 2016 WL 1669260 (Fla. Apr. 27, 2016); Mareel v. State, 841 So. 2d 600, 603 (Fla. 4th DCA 2003) (“Inducement entails some semblance of ‘arm-twisting,’ pleading, or coercive tactics.” (quoting Gifford, 17 F.3d at 468)).

“Inducement is defined as including ‘persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy[,] or friendship.” State v. Lopez-Garcia, 356 So. 3d 857, 860 (Fla. 2d DCA 2022) (quoting Rivera v. State, 180 So. 3d 1195, 1197 (Fla. 2d DCA 2015)). “Inducement cannot be found by prompting or creating an opportunity.” Id. (quoting State v. Harper, 254 So. 3d 479, 486 (Fla. 4th DCA 2018)). Accepting the undercover agent’s account of their interaction and the conversation that followed, a jury could conclude that the government merely created the opportunity, and that alone does not qualify as inducement. Because inducement was disputed, the trial court erred by granting Gadbois’s motion to dismiss.

FOOTNOTE 3

Section 777.201(1), Florida Statutes (2024), states in full: “A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.”