Major Florida Court Reverses Unlawful Use of 2-Way Device Conviction Due to Double Jeopardy

November 11, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 2nd District Court of Appeal found that a defendant could not be convicted of both solicitation of a minor and unlawful use of a 2-way communications device for conduct that occurred on the same day.

In Florida, someone may be charged with solicitation of a minor (Fla. Stat. 847.0135(3)) along with unlawful use of a two-way communications device (Fla. Stat. 934.215). 

These are very serious third-degree felonies, punishable by up to 5 years in prison and a $5,000 fine. Those sentences may run consecutively – so if convicted of both, someone may receive up to 10 years in Florida state prison.

If someone is charged with both of these offenses, this can be quite scary. Often, someone may face this pair of charges after being ensnared in a law enforcement sting operation, during which they allegedly communicated in a sexual manner online with a fictional minor. 

When a person is charged with solicitation of a minor online and unlawful use of a two-way communications device, a key question is whether they are being prosecuted (and punished) twice for the same criminal conduct. If so, this is unlawful – as it is a violation of the U.S. Constitution’s Fifth Amendment protection against double jeopardy.

Under Florida law (and throughout the U.S.), the key to determining whether someone is being placed in “double jeopardy” is whether they are being charged with an offense in which the elements of the other offense are entirely subsumed. Let’s take a practical example – theft.

Imagine someone steals a laptop worth $800. In line with Florida’s theft statute, the State charges someone with third-degree felony grand theft (item worth >$750). However, the State also hits the defendant with first-degree and second-degree misdemeanor petit theft charges – as these “lower levels” of theft were automatically also committed when the laptop was stolen.

Under the Double Jeopardy Clause, this is not allowed. In essence, the State may not “stack” charges for the same course of criminal conduct in order to maximize the potential punishment for defendants. If a “lesser” offense that is inherently committed when the “greater” offense is committed, the defendant may only be punished for the “greater” offense – not both.

This is important to understand in the context of solicitation of a minor and unlawful use of a two-way communications device charges. This is because soliciting a minor online requires the following to have occurred for someone to be guilty:

• The defendant used a computer, online service, internet service or electronic device (e.g. a two-way 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

Notice that online solicitation of a minor inherently involves the unlawful use of a two-way communications device. Unlawful use of a two-way device (Fla. Stat. 934.215) requires that a defendant use a two-way device (e.g. cell phone, laptop, tablet) to facilitate the commission of any felony offense in Florida.

Since online solicitation of a minor involves the use of a two-way device to commit the felony of soliciting a minor, convicting a defendant for both solicitation and unlawful use punishes them twice for the same course of criminal conduct. Per the U.S. Supreme Court’s Blockburger ruling, this is not allowed.

But how do courts determine if this is the “same course of conduct,” prohibiting an unlawful use conviction on top of a solicitation conviction? Under the test established by the Florida Supreme Court in Lee v. State (2018), this is determined by whether the charging document says these two offenses occurred on the same day. If so, convictions for both violate double jeopardy.

But can this presumption of double jeopardy be overcome? Can unlawful use and solicitation on the same date ever be considered two “courses of conduct”?

The answer, according to one top Florida court, is no. Let’s break down a major ruling from Florida’s 2nd District Court of Appeal, Schwoerer v. State, 313 So. 3d 809 (Fla. 2d. DCA 2021) and what it means for double jeopardy in solicitation and unlawful use cases.

KEY CASE: Schwoerer v. State, 313 So. 3d 809 (Fla. 2d. DCA 2021)

In Schwoerer, the defendant (Schwoerer) was charged with solicitation of a minor and unlawful use of a two-way device, and was convicted at trial. Schwoerer allegedly solicited an undercover law enforcement officer, who he believed to be a 14-year-old girl, for sex online. Though he did not travel to meet the fictional minor, he was nevertheless arrested.

Before trial, Schowoerer filed a motion to dismiss the unlawful use of a 2-way communications device charge. He argued that because both offenses were allegedly committed “on or around October 7, 2018,” according to the charging document, the Florida Supreme Court’s Lee ruling prohibited convictions and punishments for both offenses.

The trial judge denied the pretrial motion “based on its review of the elements of each offense,” but did not elaborate further. Schowerer was eventually convicted on both charges at a bench trial. He renewed his motion to dismiss the unlawful use charge after trial, but this was again denied by the trial judge. 

Schwoerer was sentenced to 5 years for solicitation and 2 years for unlawful use, which were to run consecutively (for a total of 7 years on these two charges). On appeal, Schwoerer argued that his double jeopardy rights were violated because he was being punished twice for the same act of solicitation – as the unlawful use inherently occurred when the solicitation was made.

The State reiterated its argument to the 2nd DCA that it made to the trial judge, which the 2nd DCA summarized as:

“The State agrees that Lee applies in a jury trial in which a general verdict has been rendered on each count because in that context, the reviewing court ‘cannot infiltrate the black box of jury deliberation’ to ascertain whether the jury found distinct factual bases for its verdicts on each count.”

“But, it argues, ‘such a limitation is unwarranted when the [reviewing] court can discern from the jury verdict that the jury specially found that each act of criminality was distinct.’ And it argues further that ‘[w]hen rendering its verdict [in the bench trial in this case], the court, as the trier of fact, made clear that the convictions were based on separate and distinct acts of solicitation or enticement of a child. One criminal episode occurred … on October 7th and the other criminal episode occurred on October 9th.’”

In other words, the State argued that because the judge personally determined the solicitation and unlawful use happened on different days (October 7 and 9), punishing Schwoerer for both of these was not a double jeopardy violation. The State asserted this despite the charging document alleging that both offenses occurred on October 7.

But the 2nd DCA was not persuaded. Applying Lee v. State (2018), the 2nd DCA ruled that the only question (when determining whether solicitation and unlawful use charges violate double jeopardy) is whether the charging document says the offenses happened on the same day. The court wrote:

“We appreciate the State’s logic, but although Lee itself arose in the context that the State identifies, the supreme court’s holding that we, as the reviewing court, may look only to the charging document was neither limited nor qualified. To the contrary, it was unequivocal—so unequivocal that the court stated it three times in the opinion in nearly identical terms.”

“Moreover, even if we felt at liberty to accept the State’s invitation to narrow Lee’s holding, we would still conclude that Lee mandates reversal here. Contrary to the State’s argument, the factual bases for the trial court’s verdicts on the solicitation and unlawful use counts are not clear and distinct. … We therefore conclude that pursuant to Lee, Schwoerer’s conviction for unlawful use must be reversed on double jeopardy grounds.”

Essentially, the 2nd DCA held that even though the trial judge thought the solicitation and unlawful use happened on different days, the judge did not articulate what specific facts led him to that conclusion. But even if he had done so, the 2nd DCA noted that it still would have ruled to reverse the unlawful use conviction pursuant to Lee’s “same date in charging document” rule.

In sum, Schwoerer v. State, 313 So. 3d 809 (Fla. 2d. DCA 2021) is a significant development in Florida case law surrounding solicitation of a minor, unlawful use of a two-way communications device and the Double Jeopardy Clause.

The 2nd DCA was clear that a judge may not personally decide that solicitation and unlawful use charges may both be brought because they were “separate courses of conduct,” if the information (charging document) says these happened on the same date. 

If the information charges a single criminal episode (same day), dual convictions automatically violate double jeopardy, requiring the reversal of the unlawful use conviction and sentence as a matter of law. Moreover, if someone was convicted and sentenced for both, resentencing on the solicitation charge is required pursuant to a corrected scoresheet (Schwoerer at 812).

Unlawful use of a two-way communications device is a very serious charge in Florida, and can carry lengthy prison sentences as well as hefty fines. If someone is charged, it is vital to secure experienced and aggressive legal representation as soon as possible. 

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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