Attempted Sexual Battery Charges for Traveling to Meet a Minor? Major Florida Court Says No

December 4, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Florida’s 2nd District Court of Appeal reversed a defendant’s conviction for attempted sexual battery after he was ensnared in a “traveling to meet a minor” police sting.

In Florida, traveling to meet a minor (Fla. Stat. 847.0135(4)) is often charged alongside two other charges that compose the “unholy trinity” – solicitation of a minor (Fla. Stat. 847.0135(3)) and unlawful use of a two-way communications device to facilitate a felony (Fla. Stat. 934.215). 

This often stems from law enforcement sting operations, where officers pose as “minors” online (e.g. on dating apps or in chatrooms). A defendant may be accused of sending solicitous (sexual) communications to the fictional minor and traveling to meet them for the purpose of unlawful sexual activity.

Important: Traveling to meet a minor is a second-degree felony (up to 15 years in prison and a $10,000 fine). Solicitation of a minor and unlawful use of a two-way communications device are each third-degree felonies (up to 5 years in prison and a $5,000 fine). This is the case regardless of whether a real minor was the victim, or an undercover police officer was posing as one online.

For more on traveling to meet a minor, solicitation and unlawful use charges in Florida (as well as potential defenses to these charges), click here.

Depending on the facts of a case, law enforcement may hit a defendant with additional charges if they are accused of solicitation of and traveling to meet a minor. One of these is attempted lewd battery – a conviction for which alongside traveling to meet a minor was upheld by Florida’s 2nd DCA, despite double jeopardy concerns. Byun v. State, 294 So. 3d 418 (Fla. 2d DCA 2019)

Attempted lewd battery is only applicable as a charge if the alleged minor victim did not object (“consented,” but not legally) to the sexual activity before the alleged traveling occurred, and the “minor” (real or fictional) was between 12 and 15 years old at the time. But what happens if an undercover officer pretends to be a minor under 12, or a person trafficking them?

In such cases, the State has gone so far as to charge someone with attempted sexual battery after they are arrested in a law enforcement sting. This is an extremely serious crime that carries even heavier penalties than traveling to meet a minor. In fact, attempted capital sexual battery (victim under 12, defendant 18 or older) is a first-degree felony (up to 30 years in prison).

For a person to be proven guilty of attempted sexual battery, they must have developed a specific intent to commit sexual battery – and committed an overt act towards carrying out the crime that fell short of completing it. 

Note: Sexual battery involves anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object – not done for a bona fide medical purpose (Fla. Stat. 794.011; Seagrave v. State, 802 So. 2d 281 (Fla. 2001)).

For more on attempted sexual battery, including elements, potential penalties, and defenses to the charge, click here.

Before 2014, attempted sexual battery charges were more frequently brought alongside traveling and solicitation charges, even if the product of a police sting. This was especially common if the fictional “minor” (e.g. undercover officer) was under the age of 12 – because any sexual activity the defendant expected to engage in with the minor would have been capital sexual battery.

However, that changed with a major decision by one of Florida’s District Courts of Appeal, Mizner v. State, 154 So. 3d 39 (Fla. 2d. DCA 2014). Let’s break Mizner down and discuss its implications for traveling and solicitation cases in Florida, especially those that stem from police sting operations.

KEY CASE: Mizner v. State, 154 So. 3d 39 (Fla. 2d. DCA 2014)

In Mizner, the defendant (Mizner) clicked on an online advertisement by “Cindy,” an undercover police officer. The ad discussed “family fun with my daughter and I.” Mizner inquired as to what this met via email, and the officer responded that she was a 35-year-old mother seeking a “sexual mentor” for her 10-year-old daughter (“Sabrina”).

Over the next few days, Mizner and the undercover officer (FDLE Agent) discussed details of a potential meeting between Mizner and the fictional mother and daughter. “Cindy” agreed to drive to Sarasota alone to meet Mizner at a nearby restaurant and negotiate the arrangement. Mizner was arrested upon his arrival, and was found to have candy and condoms in his possession.

Mizner was indicted via information on four charges, which included:

• Traveling to meet a minor (Fla. Stat. 847.0135(4))
• Solicitation of a minor (Fla. Stat. 847.0135(3)) 
• Unlawful use of a two-way communications device to facilitate a felony (Fla. Stat. 934.215)
• Attempted capital sexual battery (Fla. Stat. 794.011), a first-degree felony punishable by up to 30 years in prison

Mizner was brought to trial on all counts and convicted. On appeal, he argued that he could not be convicted of attempted capital sexual battery as a matter of law. 

As “attempt” requires going beyond “mere preparation” (an “overt act” towards the commission of the underlying offense is required), Mizner asserted he committed no such “overt act” towards what would have been sexual battery upon Sabrina. Mizner claimed his purchases of candy and condoms were “mere preparation” that required his conviction to be reversed.

Florida’s 2nd District Court of Appeal (Greater Tampa area) agreed with Mizner, reversing his conviction for attempted sexual battery, for which he had received 20 years in prison. The 2nd DCA explained:

“In reviewing the facts in this case, two reasons lead us to conclude that Mr. Mizner’s conduct constituted mere preparation and not overt acts leading to the commission of a sexual battery on a minor less than twelve years of age. First, the arrangements that “Cindy” made for Mr. Mizner to meet “Sabrina” were expressly conditional. According to “Cindy’s” instant message, she and Mr. Mizner were to “sit an [sic] talk first and get to know each other first.” If either party felt uncomfortable for any reason, he or she could just walk away.”

“It follows that the meeting at the restaurant in Sarasota was just a preliminary step to whatever might follow. A decision by both parties to proceed further was necessary before Mr. Mizner could be introduced to “Sabrina.” Under these circumstances, it cannot be said that an appreciable fragment of the crime had been committed at the restaurant and that it would proceed to the point that the crime would be completed unless interrupted by a circumstance independent of Mr. Mizner’s will.”

In essence, the 2nd DCA held that the sexual activity was premised on various conditions being met. Those conditions would have either been met (or not met) during the “meal” that “Cindy” was ostensibly intending to share with Mizner. As a result, an “overt act” sufficient to satisfy the attempt charge (beyond “mere preparation”) had not yet occurred, as there was no agreement.

The 2nd DCA also observed the significant amount of time that would have to elapse and the various “steps” between Mizner’s alleged “attempt” and the sexual battery. The court concluded that the connection was too attenuated to support an attempted capital sexual battery conviction, based only on the emails and presence of condoms:

“[W]hen Mr. Mizner was arrested in the restaurant parking lot in Sarasota, he was approximately sixty miles and eight-to-ten hours away from the proposed sexual contact with “Sabrina.” Before that event could occur, the following steps needed to happen: (1) Mr. Mizner and “Cindy” had to eat lunch at the restaurant; (2) “Cindy” had to drive Mr. Mizner to Zolfo Springs; (3) Mr. Mizner and “Cindy” had to pick up “Sabrina” from school; and (4) dinner had to be prepared, served, and eaten. It would have been impossible for Mr. Mizner to have committed a sexual battery upon “Sabrina” in Sarasota.”

“[T]o the extent that “Sabrina” is a person for the purpose of our analysis of Mr. Mizner’s culpability under the law of attempts, she was attending school in another community approximately sixty miles away when the law enforcement officers placed Mr. Mizner under arrest. Thus Mr. Mizner could not have committed a sexual battery upon “Sabrina” in Sarasota. Undeniably, at the time of his arrest in the restaurant parking lot, Mr. Mizner had not committed an act reaching far enough toward accomplishing a sexual battery to amount to the beginning of the completion of that crime.”

In sum, Mizner v. State, 154 So. 3d 39 (Fla. 2d. DCA 2014) is an intriguing development in Florida’s corpus of case law surrounding attempted sexual battery charges in traveling to meet a minor cases.

Despite him being convicted of traveling to meet a minor and solicitation of a minor, the Mizner court (2nd DCA) held that his attempted capital sexual battery conviction had to be overturned. This was because Mizner had only “prepared” for the act that would have constituted a sexual battery – it was not even close to underway yet.

Notably, the court affirmed Mizner’s remaining convictions. So, does this mean that even if someone is found guilty of traveling/solicitation/unlawful use, that they can never be found guilty of attempted sexual battery on the alleged minor/undercover officer?

The truth is – Mizner v. State does not draw a hard line on this issue. But in order for Mizner’s conviction to have been upheld, the following conditions would have to be met (according to the 2nd DCA):

• The sexual battery on the fictional minor (“Sabrina”) had to have been imminent (about to happen)
• No “conditions” (e.g. disputes that could have arisen during Mizner’s meal with “Cindy”) were standing in the way of the act occurring at the time of his arrest

Thus, Mizner does not totally preclude the State from charging someone accused of traveling to meet a minor (or parent/guardian of a minor) from being charged with attempted capital sexual battery. But it undoubtedly makes such a charge more difficult to bring.

As noted earlier, this charge would likely only be brought in a situation where a defendant traveled to meet a minor or parent of a minor (or person believed to be a minor) that is under 12 years old. If a defendant corresponds with a “minor” between 12 and 15 years old, the State is more likely to bring an attempted lewd battery charge (not sexual battery).

As attempted lewd battery is also an attempt charge, the State must prove what it had to prove (and failed to) in Mizner – that the defendant performed an “overt act” which went beyond mere preparation.

This has been done at least once – in Byun v. State, 294 So. 3d 418 (Fla. 2d DCA 2019), also decided by the 2nd DCA. For more on this, click here.

If someone is arrested and formally charged in Florida in a case and has a potential entrapment defense, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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