How 2 FL Supreme Court Decisions Shaped Tallahassee’s Highest Court on Double Jeopardy

March 5, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Florida’s 1st District Court of Appeal issued two decisions approximately one year apart in the same case – in which a defendant alleged dual convictions for solicitation and traveling to meet a minor violated double jeopardy – that were shaped by the Florida Supreme Court’s evolving analysis.

In Florida, solicitation of a minor (Fla. Stat. 847.0135(3)) is a very serious offense. For someone to be guilty of solicitation of a minor, the State must prove all of the following elements 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 (e.g. undercover law enforcement) to engage in sexual activity (or attempted to do so)

Solicitation of a minor online is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine.

If someone travels after soliciting a minor to meet them for unlawful sexual activity (or a person believed to be a minor, such as an undercover law enforcement officer), that person is likely to be charged with traveling to meet a minor (Fla. Stat. 847.0135(4)). Kuckuck v. State, 232 So. 3d 530 (Fla. 5th DCA 2017)

For someone to be guilty of traveling to meet a minor for unlawful sexual activity, 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

Traveling to meet a minor is an extremely serious second-degree felony, punishable by up to 15 years in prison and a $10,000 fine.

You may notice the elements of solicitation of a minor are entirely subsumed by (e.g. contained within) the elements of traveling to meet a minor. Someone can’t commit the offense of traveling to meet a minor without first performing an online solicitation of that minor (or person believed to be a minor). 

Note: Solicitation of a minor occurs when someone attempts to “seduce, solicit, lure or entice” a minor into sexual activity. This does not require an explicit agreement to engage in a particular sex act – solicitous intent can be inferred by the “totality of the circumstances.” For more, click here. Grohs v. State, 944 So.2d 450 (Fla. 4th DCA 2006)

Under the U.S. Supreme Court’s Blockburger v. United States, 284 U.S. 299 (1932) decision, this means dual convictions (e.g. convictions for both offenses) violate the Fifth Amendment’s bar on double jeopardy if the charges arise from the same alleged course of criminal conduct.

In simple terms, this means that if someone solicits a minor or person believed to be a minor then travels to meet them for sex after that solicitation, they may only be convicted of traveling. This is because the solicitation itself is a component of the crime of traveling to meet a minor. State v. Shelley, 176 So.3d 914 (Fla. 2015)

Important: It is also a crime to solicit a parent or guardian of a minor (or person believed to be a parent/guardian of a minor) and travel to meet that parent or guardian for purposes of engaging in sexual activity with the minor. This carries the same penalties as direct solicitation/traveling, and is codified by Fla. Stat. 847.0135(3)(b) and (4)(b).

However, if someone performed a different solicitation that did not result in traveling to meet the minor (or person believed to be a minor), they may permissible be charged with and convicted of both offenses. This is significant because separate punishments for solicitation and traveling may result in up to an additional 5 years in prison (since solicitation is a third-degree felony).

For many years, it was unclear whether it was impermissible to charge solicitation and traveling alongside each other in Florida. While some District Courts of Appeal applied Blockburger v. United States, 284 U.S. 299 (1932) and found that dual convictions and sentences violated the Fifth Amendment (double jeopardy), others affirmed dual convictions and sentences.

Generally, Florida’s 1st District Court of Appeal affirmed dual convictions for solicitation of a minor and traveling to meet a minor – even if the solicitation served as the basis for the alleged traveling – until 2015. That’s when the Florida Supreme Court issued a major decision: State v. Shelley, 176 So.3d 914 (Fla. 2015). 

In Shelley, the defendant was charged with and convicted of solicitation of a person believed to be a parent or guardian of a minor and traveling to meet a person believed to be the parent or guardian of a minor. The State did not make clear if the solicitation that served as the basis for Shelley’s traveling charge was different from the one that produced the solicitation charge.

As a result, the Florida Supreme Court reversed Shelley’s solicitation conviction. The Florida Supreme Court found that unless the State makes clear that multiple solicitations took place – and that the solicitation that served as the basis for the traveling was different from one that did not – dual convictions for these offenses violated double jeopardy.

This ruling sent shockwaves through Florida’s legal system, as many defendants immediately challenged their convictions successfully for solicitation of a minor when they were also charged with traveling (on the basis that dual convictions violated double jeopardy). While most of these challenges were successful, however, some were not.

One of those “unsuccessful” challenges was a case heard in 2018 (post-Shelley) by Florida’s 1st District Court of Appeal – Dygart v. State, 247 So.3d 655 (Fla. 1st DCA 2018). In that case, the defendant (Dygart) sent dozens of sexually solicitous messages to what he believed to be a minor (14-year-old), but was actually an undercover law enforcement officer.

Upon traveling to meet the fictional minor, Dygart was arrested and charged with solicitation of a minor and traveling to meet a minor. Dygart’s myriad solicitations took place on October 15 and 16 – and he traveled to meet the “minor” on October 16. 

However, the State did not specify in the charging document which solicitation of Dygart’s was the basis for the solicitation charge and which was the basis for the traveling charge (e.g. that they were two different solicitations). Nevertheless, Dygart went to trial on both counts – and was convicted of and sentenced for both solicitation and traveling.

On appeal, Dygart urged the 1st DCA to vacate his solicitation of a minor conviction pursuant to State v. Shelley, 176 So.3d 914 (Fla. 2015). However, the 1st DCA affirmed Dygart’s solicitation conviction (and traveling conviction) – finding that since Dygart sent many solicitous messages, the 1st DCA was not required to “presume” the same solicitation supported both charges:

“Consider an example. Suppose a defendant solicits a minor over the Internet two separate times. No one would dispute that the defendant could be charged with two counts of solicitation; after all, he committed two separate offenses. Now suppose that after one of the two solicitations the same defendant travels to meet the minor for sex. Has he not still committed two separate offenses? Of course he has: one for the crime of solicitation (for the first solicitation, after which he did not travel) and one for traveling to meet the minor after the second solicitation. In this situation, the first offense turned on one solicitation, and the second offense turned on a second, independent solicitation. Shelley would not require us to presume there was only one solicitation when the record showed more. Instead, Shelley applies only when multiple convictions turn on the same solicitation. … Our only issue is whether, on this record, Dygart has met his burden of showing a double-jeopardy violation. Because he has not, we affirm.”

Judge Makar of the 1st DCA offered a concurrence in result dubitante (e.g. he did not dissent but was doubtful that the majority correctly applied Shelley). Judge Makar argued that because it was “impossible” to conclude whether a double jeopardy violation had occurred (given the State did not specify which solicitation served as the basis of each charge), he would support reversal:

“Under these circumstances, because it can’t be demonstrated that the jury’s verdict was based on separate and distinct acts, it is impossible to conclude that a double jeopardy violation didn’t occur. Lee, 223 So.3d at 372 (“[T]he double jeopardy problem in this case stems from a poorly-drawn information and the lack of jury instructions and a verdict form that assures us that the jury actually found that each violation of the traveling and solicitation counts charged against Lee was based on separate and distinct acts.”) (Makar, J., concurring in part, dissenting in part); id. at 371 (“The information in this case did not allege distinct acts; the verdict form did not separate the acts; and the evidence presented to the jury could support, but did not require, the jury to find that the acts underlying Lee’s conviction were separate.”).”

“But Lee has left the runway, its dissenters’ views mere contrails. While I concur in the result in this case, because adherence to Lee is required, it is not without continuing doubt as to Lee’s correctness and its shelf life due to its conflict with the Shelley decision and those from other districts.”

Judge Makar’s opinion could be called an “implicit dissent,” as he was bound by the 1st DCA’s Lee v. State, 223 So.3d 342 (Fla. 1st DCA 2017) decision at the time he wrote it – but thought Shelley was almost certainly being misapplied.

Intriguingly, just months after Dygart I was decided, the Florida Supreme Court reversed the 1st DCA’s ruling in Lee v. State, 223 So.3d 342 (Fla. 1st DCA 2017). Lee involved similar facts to Dygart, in that it was unclear whether the “same” solicitous message of Lee’s had served as the basis of the solicitation and traveling charges against him.

Note: Lee was also convicted of unlawful use of a two-way communications device (Fla. Stat. 934.215), which courts have consistently held is also subsumed into traveling to meet a minor when unlawful use is charged alongside traveling and solicitation.

After the 1st DCA affirmed his dual convictions, the Florida Supreme Court reversed these in Lee v. State, 258 So. 3d 1297 (Fla. 2018). The Florida Supreme Court held that for purposes of deciding whether double jeopardy is violated in traveling/solicitation/unlawful use cases, the charging document must be looked at: 

“Accordingly, we hold that, to determine whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document—not the entire evidentiary record.”

“The information alleged that the traveling offense occurred ‘on or about January 2, 2014.’ The information alleged that the unlawful use of a two-way communications device and the solicitation offense occurred ‘on one or more occasions between December 22, 2013, and January 1, 2014.’”

“[T]he information does not make clear that the State relied on separate conduct to charge the offenses… ‘The information in this case did not allege distinct acts; the verdict form did not separate the acts; and the evidence presented to the jury could support, but did not require, the jury to find that the acts underlying Lee’s conviction were separate.’ Considering only the information, it is impossible to know whether the jury convicted Lee of all three offenses based on the same act of solicitation.”

In deciding Lee v. State, 258 So. 3d 1297 (Fla. 2018), the Florida Supreme Court rejected the 1st DCA majority’s logic in Dygvart I. If solicitation and traveling occur on the same date, Lee holds this automatically violates double jeopardy. 

Without the State specifying that the solicitation that served as the basis for the traveling charge is distinct from the one that served as the basis for the solicitation charge, Lee made clear that the solicitation conviction must be vacated. This is the opposite of what the 1st DCA held in Dygart I.

Less than a year after Dygart I was decided, the 1st DCA heard Dygart’s renewed appeal (Dygart II), which cited the Florida Supreme Court’s recent ruling in Lee. Dygart v. State, 270 So.3d 557 (Fla. 1st DCA 2019). Finding Lee held that ambiguity as to whether the same solicitation served as the basis for both charges must be resolved in favor of the defendant, the 1st DCA wrote:

“In Lee, the Florida Supreme Court held “that to determine whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court may consider only the charging document.” Lee, 258 So. 3d at 1304. Looking only at the information in this case, we cannot conclude one way or the other whether the State based the two charged counts (one for solicitation and one for travel following solicitation) on the same solicitation. In this circumstance, Lee requires that we reverse the lesser conviction. Affirmed in part; Reversed in part.”

Because of Lee, Florida’s 1st DCA had no choice but to vacate Dygart’s solicitation conviction in response to his renewed appeal. The fact that Dygart made “dozens” of solicitations did not mean it could be “presumed” that separate solicitations served as the basis for each charge – when the charging document in Dygart’s case did not make that clear.

In sum, two decisions by the Florida Supreme Court (State v. Shelley, 176 So.3d 914 (Fla. 2015) and Lee v. State, 258 So. 3d 1297 (Fla. 2018)) informed how the 1st DCA decided Dygart I and Dygart II – the former came after Shelley, while the latter came after Lee.

In Dygart I, the 1st DCA applied Shelley and found that it could be “assumed” the State did not base both charges on the same solicitous message (which would violate double jeopardy). Judge Makar disagreed.

But after Lee v. State, 258 So. 3d 1297 (Fla. 2018) was decided, the 1st DCA had no choice but to reverse itself. That’s why in Dygart II, the defendant’s solicitation conviction (e.g. the lesser offense of traveling) was vacated. 

Because the elements of solicitation were subsumed by the elements of traveling and the State did not make clear that the charges were based on different solicitations (e.g. because the dates for both charges overlapped in the charging document), Dygart’s solicitation conviction was reversed.

The fascinating “back-and-forth” between Florida’s Supreme Court and Florida’s 1st District Court of Appeal on this issue should be examined by Florida’s criminal defense community, as understanding how state courts view this issue can help support a motion to dismiss or motion for judgment of acquittal in such cases on double jeopardy grounds.

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 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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