Does Charging 2-Way Device & Traveling to Meet Minor Violate Double Jeopardy in FL?

June 18, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes, Social Media Social Share

In Florida and all 50 U.S. states, someone arrested and charged with a crime has a constitutional protection against double jeopardy. Double jeopardy occurs when someone is either put on trial again despite being acquitted, or is charged with multiple crimes stemming from the same course of conduct, the elements of which entirely overlap. Blockburger v. United States, 284 U.S. 299 (1932).

But does charging unlawful use of a two-way communications device with traveling to meet a minor actually violate the U.S. Constitution’s prohibition on double jeopardy? The answer is – sometimes, but it depends on the facts of the case. 

This article will simplify the complex legal issue of double jeopardy in cases where traveling to meet a minor and unlawful use of a two-way communications device are jointly charged.

In the context of cases involving allegations of traveling to meet a minor for the purpose of sexual activity, unlawful use of a two way communications device is often also charged. Under Fla. Stat. 934.215, unlawful use of a two-way communications device occurs when:

• The defendant knowingly used a two-way communications device; (e.g., cellphone, walkie-talkie, radio, texting app, etc.)
• The defendant used the device to facilitate the commission of a felony offense

Many individuals charged and convicted with traveling to meet a minor have challenged their additional conviction for unlawful use of a two-way communications device. They argue that the elements of the unlawful use of a two-way communications device offense are subsumed by the traveling offense, and a conviction for this impermissibly creates multiple punishments for the same conduct. 

In cases involving traveling to meet a minor for sex, law enforcement will often charge three separate offenses for the alleged conduct. These include:

• Traveling to meet a minor (Fla. Stat. Section 847.1035(4)), a second-degree felony punishable by up to 15 years in prison and a $10,000 fine
• Online solicitation of a minor (Fla. Stat. Section 847.1035(3)), a third-degree felony punishable by up to 5 years in prison and a $5,000 fine
• Unlawful use of a two-way communications device, punishable by up to 5 years in prison and a $5,000 fine

In cases involving a solicitation and a traveling charge, a double jeopardy claim can often be successful. This is because the elements of online solicitation are entirely subsumed by the elements of traveling to meet a minor. The only difference in the elements of these offenses is that traveling to meet a minor involves physically traveling or attempting to travel to meet the child (or someone believed to be a child) for the purpose of sexual activity, after a solicitation has occurred.

Recognizing that solicitation is a component of traveling to meet a minor (as a solicitation must precede the traveling), Florida’s courts have struck down solicitation and traveling convictions that arise from the same course of conduct. State v. Shelley, 176 So. 3d 914 (Fla. 2015).

For example, if someone solicits a minor (or an undercover officer they believe to be a minor) for sex and travels to meet them that same day, the solicitation offense is subsumed by traveling and cannot be brought as a separate charge. Id.

However, the Shelley court left the door open to solicitation being charged alongside traveling when certain conditions are satisfied. Florida’s courts use a “totality of the circumstances” test to determine whether solicitations were separate and distinct criminal acts. Factors courts rely on include “whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” McCarter v. State, 204 So.3d 529 (Fla 1st DCA 2016).

The same analysis applies for a charge of unlawful use of a two-way communications device alongside a charge of traveling to meet a minor. Florida’s courts have held that if traveling to meet a minor and solicitation arise from the same course of conduct, a separate conviction for unlawful use of a two-way communications device also violates double jeopardy protections.  Batchelor v. State, 193 So. 3d 1054 (Fla. 2d DCA 2016).

In Batchelor, the appellant was convicted of traveling to meet a minor for sex and unlawful use of a two-way communications device. Batchelor challenged his conviction for the latter offense, arguing that the State charged him twice for the same conduct – violating Blockburger.

The State rejected this argument. Unlike solicitation of a minor, the State argued that the core elements of unlawful use of a two-way communications device are 1) the knowing use of a two-way communications device and 2) the deliberate facilitation of a felony. Traveling to meet a minor, on the other hand, requires:

• The defendant knowingly used a computer online service, Internet service, local bulletin board service, device capable of electronic data storage or transmission to contact the victim
• The victim was a child or a person the defendant believed to be a child
• During that contact, the defendant seduced, solicited, lured, or enticed a minor, or attempted to do so, to commit any illegal sexual act
• The defendant then traveled, attempted to travel, caused another to travel, attempted to cause another to travel within Florida for the purpose of unlawful sexual conduct with the child or person believed to be a child

Given the lack of elemental overlap, the State contended that double jeopardy was not a concern here. But the Batchelor court disagreed. The court observed that the charges resulted from the same criminal episode – which occurred on or around June 10, 2013 and June 13, 2013. 

Moreover, the court noted that for someone to commit online solicitation of a minor or travel to meet a minor, they must first solicit the minor using any of the following means:

•  A computer online service or Internet service
• Local bulletin board service
• Any other device capable of electronic data storage or transmission

The Batchelor court observed that to do any of the above, a two-way communications device must be utilized. Thus, unless a separate course of conduct is alleged in the charging document other than the conduct that gave rise to the solicitation and traveling charges, a separate charge of unlawful use of a two-way communications device is barred by double jeopardy. Id.; Mizner v. State, 154 So.3d 391 (Fla 2d. DCA 2016)

Like solicitation, the State may separately charge unlawful use of a two-way communications device if the McCarter factors (whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a “temporal break” between offenses) indicate a lack of double jeopardy. However, doing so for the same conduct violates double jeopardy.

In sum, unlawful use of a two-way communications device generally cannot be charged with traveling to meet a minor. This is because charging the offenses jointly violates double jeopardy protections if the charges arise from the same course of conduct.

The 2nd DCA reasoned in Mizner and Batchelor that because online solicitation requires the use of a two-way communications device, and solicitation is required before traveling charges can be brought, the elements of solicitation and unlawful use of a two-way communications device are subsumed by the elements of traveling to meet a minor. Thus, they cannot be charged alongside traveling for the same conduct.

Under Florida’s Pardo rule, since no District Court of Appeal in the state has reached an opposite conclusion, Mizner and Batchelor are considered binding on all criminal proceedings in the state (as of 2025). This fact may be crucial for creating a defense strategy in these cases. 

If someone is arrested and formally charged in Florida with traveling to meet a minor and unlawful use of a two-way communications device, 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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