Can Traveling to Meet a Minor Lead to Attempted Lewd or Lascivious Battery Charges in Florida?

September 23, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, traveling to meet a minor is a very serious felony. But there’s a largely overlooked component of many of these cases – that an allegation of traveling can also lead to attempted lewd or lascivious battery charges. 

Traveling to meet a minor is regulated by Fla. Stat. 847.0135(4).

For someone to be guilty, the State must prove all of the following elements beyond a reasonable doubt:

• The defendant used a computer, online service, internet service or electronic device (such as a phone or tablet) to communicate with another person
• During the communication, the defendant intended to seduce, solicit, lure or entice a child (under the age of 18) or someone believed to be a child to engage in unlawful sexual activity
• The defendant traveled or attempted to travel to a location in Florida with the intent to meet the minor (or person believed to be a minor) for the purpose of unlawful sexual activity

Traveling to meet a minor is a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. For a full breakdown of Florida’s traveling to meet a minor statute, click here.

A felony traveling to meet a minor charge can be brought even if the “minor” was ultimately an undercover law enforcement officer conducting a sting operation. The law explicitly authorizes this by also making it unlawful to travel to meet someone “believed to be a child” for the purpose of sexual activity.

Traveling to meet a minor is often charged alongside two other charges that compose the “unholy trinity” – online 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). 

Soliciting a minor for sexual activity and using a device to do so are separate felonies, each punishable by up to 5 years in prison and a $5,000 fine. For more on solicitation and unlawful use of a two-way communications device, click here.

However, the “unholy trinity” often violates a defendant’s protection against double jeopardy – because the elements of solicitation and unlawful use are subsumed within the traveling charge if these stem from the “same course of conduct.” State v. Shelley, 176 So.3d 914 (Fla. 2015).

If online solicitation and unlawful use charges are dismissed before trial, the State may choose to proceed only with the traveling charge. But sometimes, the State will tack on another charge that is not often discussed – attempted lewd or lascivious battery (Fla. Stat. 800.04(4) and 777.04).

For someone to be guilty of attempted lewd or lascivious battery, the State must prove all of the following beyond a reasonable doubt: 

• The defendant specifically intended to engage in sexual activity with the victim involving oral, anal or vaginal penetration or union 
• The victim was 12 or older, but younger than 16 years old
• The victim was not/would not have been forced or coerced into the act (willing and voluntary participation)
• The defendant performed an “overt act” (beyond mere preparation) in an effort to commit the crime, but failed to complete it 

An overt act consists of “some movement” towards committing an underlying crime, but does not have to be the last possible act towards completing a crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018). 

Attempted lewd or lascivious battery is a third-degree felony punishable by up to 5 years in prison, 5 years of probation, and a $5,000 fine.

Attempted lewd or lascivious battery is distinct from attempted sexual battery. Attempted lewd or lascivious battery occurs when someone acts with the intent of engaging in sexual activity with a victim between the age of 12 and 15 – but the victim is a willing, voluntary participant. Attempted sexual battery occurs if the victim is forced, coerced, or otherwise does not consent.

Lewd or lascivious battery is commonly referred to as “statutory rape.” For more information on lewd or lascivious battery charges in Florida, click here.

Given this context, prosecutors sometimes charge (or request as a lesser-included) the crime of attempted lewd battery if someone is charged with traveling to meet a minor. 

This is because the act of traveling to engage in sex with a “willing” participant between the ages of 12 and 15 (almost always the case in police stings) is arguably an “overt act” performed with the intent of committing a lewd or lascivious battery that will never be completed.

Note: An overt act consists of “some movement” towards committing an underlying crime, but does not have to be the last possible act towards completing a crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

Before 2019, bringing an attempted lewd battery charge in a traveling case was rarely done. But that year, Florida’s 2nd District Court of Appeal ruled that someone could be convicted of both traveling to meet a minor and attempted lewd battery for the same course of conduct – which is not the case for solicitation and traveling. Byun v. State, 294 So. 3d 418 (Fla. 2d DCA 2019)

In Byun, the appellant communicated with an undercover officer who claimed to be a 14-year-old girl. The two agreed to engage in sexual activity at the girl’s “home,” but police arrested Byun when he arrived. He was charged with both traveling and attempted lewd or lascivious battery.

Byun moved to dismiss the attempted lewd battery charge, arguing this was subsumed by the unlawful travel charge – just like solicitation and unlawful use (citing to State v. Shelley). But the 2nd DCA rejected this argument.

The 2nd DCA noted that attempted lewd battery has a distinct element that traveling does not. Specifically, attempted lewd battery must involve a victim between 12 and 15, whereas traveling to meet a minor can involve any victim under the age of 18. 

Because the elements of attempted lewd battery distinguished it from traveling, the court ruled that attempted lewd battery is not inherently committed when traveling to meet a minor occurs – only when the alleged victim is between 12 or 15 (or believed to be). As a result, the 5th DCA affirmed Byun’s convictions for both offenses.

The decision has attracted criticism, including the fact that Florida’s lewd battery statute (800.04) does not make it a crime to attempt this on what was believed to be a minor. The victim’s actual age must be between 12 and 15, raising questions about how attempted lewd battery charges can be successfully brought if the victim is an undercover officer (not a real child).

However, Byun currently has the force of law in Florida, given the Pardo rule. This makes it possible for any prosecutor in the State to charge attempted lewd battery with traveling to meet a minor – even in cases where solicitation and unlawful use charges would be tossed out on double jeopardy grounds.

So, can traveling to meet a minor for unlawful sexual activity (second-degree felony, up to 15 years in prison) lead to attempted lewd battery charges (third-degree felony, up to 5 years in prison) for the same act? The answer is yes.

But there are two important things to note. First, attempted lewd battery is not typically charged with traveling to meet a minor. Moreover, someone must “overtly act” to commit the underlying lewd battery. How “far” someone has to go for an overt act to have occurred (if someone has to simply drive to the meeting spot, knock on the door, etc.) is a question for the jury.

Important: For a comprehensive discussion of defenses to traveling to meet a minor charges in Florida, click here.

In the event someone is charged with a lewd or lascivious offense, it is vital to seek out aggressive and experienced legal counsel as soon as possible. The attorneys at Pumphrey Law have decades of experience fighting to win for clients across Florida.

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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