FL Court Discusses Nolle Prosequi As Remedy To Double Jeopardy Violations in Traveling and Solicitation Cases

April 16, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In a recent opinion, a concurring judge on Florida’s 2nd District Court of Appeal argued that a double jeopardy violation cannot be cured by nolle prossing a count of the information that the defendant was convicted of in violation of their Fifth Amendment protections against double jeopardy.

CASE: Aldacosta v. State, — So.3d —- (Fla. 2d DCA 2026)

Charge(s): Traveling to Meet a Minor, Attempted Lewd Battery, Solicitation of a Minor

Outcome: Convictions AFFIRMED, as the solicitation conviction was tossed out via a post-trial nolle prosequi. 

Solicitation and Traveling to Meet a Minor in Florida

In Florida, solicitation of a minor online (Fla. Stat. 847.0135(3)) and traveling to meet a minor for sexual activity (Fla. Stat. 847.0135(4)) are very serious felonies. Solicitation of a minor is a third-degree felony (up to 5 years in prison and a $5,000 fine). Traveling to meet a minor is a second-degree felony (up to 15 years in prison and a $10,000 fine). For more, click here.

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

• The defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data transmission
• The defendant used the device to seduce, solicit, lure or entice a minor (under 18) or person believed to be a minor to engage in sexual activity (or attempted to do so)

Important: Under Fla. Stat. 847.0135(3)(b), a defendant also violates the statute if they solicit a person who is (or is believed to be) the parent or guardian of a minor to engage in sexual activity with a minor.

As you examine the elements of solicitation, you may notice that it DOES NOT require that the defendant solicit an actual minor (someone under 18). Belief that the person being solicited for sex is a minor – including if this turns out to be an undercover officer – also violates the statute. Barnett v. State, 159 So.3d 922 (Fla. 5th DCA 2015). For more, click here.

Though someone may face solicitation charges even if they are ensnared in a sting operation, the defense of entrapment becomes available to them if they solicited someone that they believed to be a minor (e.g. undercover officer/informant) rather than an actual minor. To learn more about when entrapment can successfully be used as a defense in online solicitation cases, click here.

For someone to be guilty of traveling to meet a minor, the State must prove the following beyond a reasonable doubt:

• The defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data transmission
• The defendant used the device to seduce, solicit, lure or entice a minor (under 18) or person believed to be a minor to engage in sexual activity (or attempted to do so)
• After that solicitation, the defendant then traveled or attempted to travel within Florida to meet the minor (or person believed to be a minor) to engage in unlawful sexual activity

The elements of traveling to meet a minor, you may observe, entirely subsume (contain) those of the offense of solicitation. This means someone cannot commit the crime of traveling to meet a minor without committing the offense of solicitation of a minor in the process (as it is part of the offense of traveling). State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014)

The significance of this is that dual convictions for solicitation and traveling generally violate a defendant’s constitutional protection against double jeopardy. Florida’s courts are CLEAR that if solicitation and traveling charges stem from conduct – and there was only one victim – charging both solicitation and traveling violates double jeopardy. For more, click here.

There are two ways that a defendant may be impermissibly placed in double jeopardy under the Fifth Amendment of the U.S. Constitution. These include:

• The defendant is prosecuted again after being acquitted of a particular crime, in the same jurisdiction (this is the most widely known form of double jeopardy)
• The defendant is convicted of/punished for a “greater” AND “lesser” offense for the same course of conduct, when the elements of the lesser offense are entirely subsumed into the elements of the greater one

This is why, in Florida traveling to meet a minor cases, defendants are entitled to the dismissal of the solicitation charge as a matter of law. Lee v. State, 258 So. 3d 1297 (Fla. 2018)

Since solicitation is “part” of the greater (e.g. more serious) crime of traveling to meet a minor, convicting/punishing the defendant for both offenses is a double jeopardy violation (if they stem from the same course of conduct).

But what happens when a defendant is unaware of this fact, and is charged with AND convicted of solicitation and traveling to meet a minor for the same course of conduct? Since their double jeopardy rights have been violated, what legal remedies are available to cure this?

In one recent case, a Floridian defendant was convicted of both solicitation and traveling for the same course of conduct. At sentencing, the parties realized that the defendant’s double jeopardy rights would be violated by considering the solicitation as part of the defendant’s scoresheet.

To fix this problem, the State announced a post-trial nolle prosequi of the solicitation count. A nolle prosequi typically is filed before trial and involves the State’s promulgation of its intent not to prosecute a defendant at that time while reserving the right to refile the charge(s). Fore more on this, click here.

Appealing his sentence to Florida’s 2nd District Court of Appeal (Greater Tampa area), the defendant observed the fact that a nolle prosequi is typically done before trial. He argued that since the State’s nolle prosequi post-trial did not cure the double jeopardy violation in his case, he was entitled to resentencing.

The 2nd DCA disagreed and affirmed the defendant’s conviction and sentence without comment (per curiam). However, one 2nd DCA judge authored a concurring opinion in which he indicated that even though the error did not impact the defendant’s sentence, the double jeopardy violation could not be truly cured by a nolle prosequi.

Let’s take a look at that case – Aldacosta v. State, — So.3d —- (Fla. 2d DCA 2026) – and discuss what it means for defendants concerned about double jeopardy violations in traveling to meet a minor and solicitation of a minor cases in Florida.

KEY CASE: Aldacosta v. State, — So.3d —- (Fla. 2d DCA 2026)

In Aldacosta, the defendant (Aldacosta) was charged with traveling to meet a minor, attempted lewd battery, and solicitation of a minor. The following then occurred:

• Aldacosta was convicted on all counts
• Before sentencing, all parties to the case became aware that Aldacosta’s solicitation of a minor conviction violated double jeopardy, as this stemmed from the SAME COURSE OF CONDUCT as the traveling charge
• The State filed a post-trial nolle prosequi dismissing the solicitation charge, despite the fact that Aldacosta was found guilty of it
• Aldacosta was sentenced only on the traveling/lewd battery counts

On appeal, the 2nd DCA affirmed Aldacosta’s convictions and sentences without comment. But notably, one 2nd DCA judge – Judge LaRose – argued that the State could not “nolle prosse” the solicitation count to cure the violation of Aldacosta’s double jeopardy protection. Judge LaRose began:

“I concur in the per curiam affirmance of Steven James Aldacosta’s judgment and sentences for traveling to meet a minor (Count II) and attempted lewd or lascivious battery (Count III). I write to discuss the State’s presumed authority to nolle prosse a charge after the jury has returned a verdict. … The parties and the trial court immediately realized that conviction violated double jeopardy. See Shelley v. State, 134 So. 3d 1138, 1141-42 (Fla. 2d DCA 2014), approved, 176 So. 3d 914, 917-20 (Fla. 2015). The State announced a quick fix; it nolle prossed Count I. No one objected. All believed the State’s action was sufficient to resolve the double jeopardy problem. In my view, this approach created a mare’s nest to unravel.”

Writing that the State could not permissibly nolle prosse the solicitation count after trial, but this was not reviewable because Aldacosta did not object, the 2nd DCA wrote:

“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 ….”). As noted above, Mr. Aldacosta did not object. Nor did appellate counsel challenge the State’s action. Thus, we cannot remedy the State’s overreach.”

Commenting that Aldacosta’s solicitation conviction “seemingly” remains on the books because the nolle prosse was actually a “nullity,” Judge LaRose concluded:

“My concerns are beyond academic. Because the State may not nolle prosse a charge after jeopardy attached, the State’s nolle prosse of Mr. Aldacosta’s Count I conviction is a nullity. See Muhammad, 99 So. 3d at 964. Thus, the State’s feckless nolle prosse failed to totally cure the double jeopardy problem. Seemingly, the conviction remains on the books. See id. (reversing in part with directions to vacate the defendant’s convictions for the lesser included offenses of grand theft and to sentence the defendant on the organized fraud conviction). 

“The parties may very well wish to seek relief through other means. See Fla. R. Crim. P. 3.190(c)(2) (“[T]he court may at any time entertain a motion to dismiss on … grounds … [t]he defendant is charged with an offense for which the defendant previously has been placed in jeopardy.”); Fla. R. Crim. P. 3.850; Fla. R. App. P. 9.141(d). Although no remedy will alter Mr. Aldacosta’s incarceration on Counts II and III, apprising the trial court of this misstep may encourage litigants and trial courts to avoid the same pitfall.”

Put simply, Judge LaRose argued that a double jeopardy violation DID OCCUR in Aldacosta’s case in spite of the nolle prosse, which had no legal significance. However, because he did not object and because he was not sentenced on the solicitation count, affirmance was required.

In sum, Aldacosta v. State, — So.3d —- (Fla. 2d DCA 2026) marks a significant development in Florida’s corpus of case law surrounding the utilization of nolle prosequis and double jeopardy. Florida’s 2nd DCA affirmed Aldacosta’s convictions and sentences without comment. However, a concurring judge LaRose wrote that:

• A nolle prosequi didn’t cure the double jeopardy violation from dual traveling/solicitation convictions
• A nolle prosequi must be done before the jury is sworn, not at sentencing, to have legal effect
• The fact that Aldacosta was not sentenced on the solicitation charge does not mean that there is no “harm,” as his solicitation conviction presumably remains on the books (due to the invalid nolle prosequi)
• However, because Aldacosta did not object to the legal impropriety of the maneuver and because Aldacosta was not sentenced on the solicitation count, Judge LaRose concurred with the majority and affirmed

Florida’s criminal defense community should take note of Aldacosta v. State, — So.3d —- (Fla. 2d DCA 2026) – and specifically, Judge LaRose’s concurrence. If the State violates a defendant’s double jeopardy rights by convicting them of solicitation and traveling from the same course of conduct, this cannot legally be cured by a post-trial nolle prosequi – so OBJECT if this is tried!

If someone is charged with solicitation of a minor and traveling to meet a minor, it is critical to find experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term, hefty fines, and whether they are required to register as a sex offender for the rest of their life.

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 criminal 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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