North FL’s Highest Court Finds Downward Departure NOT Justified in Solicitation of a Minor Case

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

Florida’s 1st District Court of Appeal ruled the trial judge gave improper weight to “mitigating” factors after a physician was convicted of solicitation of a minor online. Found out why.

In Florida, solicitation of a minor (Fla. Stat. 847.0135(3)) is a very serious felony offense. It is a third-degree felony – punishable by up to 5 years in prison and a $5,000 fine. For someone to be guilty of solicitation of a minor (Fla. Stat. 847.0135(3)), 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 (e.g. undercover law enforcement) to engage in sexual activity (or attempted to do so)

As you may notice, someone does not have to solicit an actual minor online for sex before they can be convicted. If someone solicits an undercover law enforcement officer who is posing as a minor online as part of a sting operation, they are just as guilty of violating the law. Littleman v. State, 222 So.3d 616 (Fla. 1st DCA 2017)

Solicitation of a minor is often charged alongside traveling to meet a minor for sexual activity (Fla. Stat. 847.0135(4)). 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

If someone is charged with both of these offenses, they must take place on separate days – and the solicitation of the minor must have been different from the solicitation that led to the alleged traveling. This is because the elements of solicitation are subsumed by (contained within) the elements of traveling. If this does not occur, a defendant’s double jeopardy protection is violated.

In the event that someone is convicted of solicitation of a minor online, they may move before sentencing for a downward departure sentence. A downward departure occurs when the judge finds a justification (usually under Fla. Stat. 921.0026) to give the defendant a sentence that is less serious than their scoresheet would ordinarily demand. For more, click here.

Examples of statutory mitigators in Florida include the following (under Fla. Stat. 921.0026):

• This is an isolated, unsophisticated incident for which the defendant has shown remorse
• The defendant was a relatively minor participant in the criminal conduct
• The alleged victim was an initiator, provoker, aggressor, or willing participant in the conduct
• The defendant was acting under extreme duress or the domination of another person
• The defendant suffers from a mental health disorder from which they are amenable to treatment

In solicitation and traveling to meet a minor cases, defendants in Florida are likely to move for a downward departure – especially if the victim was not an actual minor (e.g. was an undercover law enforcement officer). The judge must first determine if a downward departure basis applies in the case – and if it does, the judge must decide if a downward departure is actually warranted.

However, a trial judge will occasionally apply both statutory and “nonstatutory” mitigators when handing down a sentence. Nonstatutory mitigators are special circumstances/facts in a case that persuade the judge to issue a more lenient sentence, even if Fla. Stat. 921.0026 does not directly apply to the defendant’s case.

But the trial judge’s discretion is not unlimited. Though the trial judge has latitude to impose a downward departure sentence (e.g. lighter sentence) based on both statutory and nonstatutory mitigators, improperly applying mitigators to the facts of a case risks reversal of the downward departure sentence on appeal. State v. Hoffman, 745 So.2d 985 (Fla. 2d. DCA 1999)

In one major case heard by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court), the defendant was a physician who was ensnared in a police sting operation and was arrested for solicitation of a minor and traveling to meet a minor. He was found guilty at trial and appealed to the 1st DCA.

The 1st DCA affirmed the defendant’s convictions for traveling to meet a minor and solicitation of a minor, despite the double jeopardy concerns raised. However, this was later reversed by the Florida Supreme Court in Lee v. State, 258 So. 3d 1297 (Fla. 2018)). 

Though the case is widely known for the 1st DCA’s improper double jeopardy analysis, the 1st DCA’s analysis of the downward departure sentence handed down by the trial judge was left undisturbed by the Florida Supreme Court. This means it is still good law in Tallahassee and North Florida.

Let’s take a look at that case – Lee v. State, 223 So.3d 342 (Fla. 1st DCA 2017) – and discuss what it means for those charged and convicted of solicitation and traveling to meet a minor who are seeking downward departure sentences in Florida.

KEY CASE: Lee v. State, 223 So.3d 342 (Fla. 1st DCA 2017)

In Lee, the defendant (Lee) was accused of solicitation of a minor (Fla. Stat. 847.0135(3)), as well as traveling to meet a minor (Fla. Stat. 847.0135(4)), and unlawful use of a two-way communications device (Fla. Stat. 934.215). He was convicted on all charges.

According to the 1st DCA, Lee was on Craigslist hoping to meet males for sexual activity when the following events transpired:

“Lee placed an ad in the Casual Encounters section of Craigslist, seeking an encounter with a male “under 25” years old. An investigator presenting himself as “Matt” responded to Lee’s ad after he determined the ad could be an effort to initiate contact with a minor. The investigator promptly informed Lee that “Matt” was only fourteen years old. But even after learning that “Matt” was a minor, Lee continued the communications. Over the course of the next eleven days, the two exchanged multiple emails and Lee proposed that the two engage in various sexual acts. On the twelfth day, Lee asked to meet “Matt” in person. When Lee arrived at the agreed-upon location, he was met by law enforcement and arrested. A search of his truck revealed erectile dysfunction medications.”

On appeal, Lee argued that his convictions and sentences violated his protection against double jeopardy. The 1st DCA disagreed – but this was later reversed by the Florida Supreme Court.

The State cross-appealed in Lee’s case on the issue of the downward departure sentence that was handed down by the trial judge. According to the 1st DCA:

“Lee’s Criminal Punishment Code scoresheet established a minimum permissible sentence of forty-five months’ imprisonment. … At sentencing, Lee presented the testimony of two employees, four former patients, and his brother. Defense counsel argued that the trial court should downwardly depart because Lee never had sexual contact with a minor, he showed great potential for rehabilitation, he maintained a close relationship with his family, and he lacked any history of prior criminal activity. The State specifically argued that none of those factors warranted the imposition of a downward departure sentence and argued against the trial court imposing such a sentence. The State argued that Lee was a danger to the community and that the court should impose a sentence of no less than five years’ imprisonment.”

“Before imposing Lee’s sentences, the trial court noted that Lee had virtually no prior criminal record and that it had not been proven that Lee had any inappropriate physical contact with a child. The court observed that it was uncontradicted that Lee was suffering from depression when he committed these crimes. The court also considered that countless patients continued to seek treatment from Lee during the pendency of these charges. The court departed downward, declining to impose a term of imprisonment, instead sentencing Lee to concurrent terms of two years’ community control followed by thirteen years’ probation. … On the Criminal Punishment Code scoresheet, the trial court specified that the departure sentence was based on the statutory mitigator that Lee required specialized treatment for a mental disorder that was unrelated to substance abuse or addiction. The court further indicated its reliance on the non-statutory mitigators announced at the sentencing hearing.”

In essence, even though Lee was facing at least 3 years and 9 months in prison, the trial judge declined to give him a prison sentence at all. This was because:

• Lee had no criminal record
• Lee allegedly had a “mental disorder that was unrelated to substance abuse or addiction” that he was amenable to treatment for
• Lee had strong family relationships and good relationships with his patients

On appeal, the 1st DCA rejected the trial judge’s sentence – reversing it and remanding with directions to impose a sentence within the guidelines (e.g. at least 45 months in prison). First addressing the “statutory mitigator” (mental health disorder), the 1st DCA found there was no evidence Lee was suffering from depression at the time he committed the offenses:

“Although the trial court relied on this factor, Lee never sought mitigation on this basis at the sentencing hearing or in his sentencing memorandum. Further, the record does not contain sufficient evidence to support departure on this basis. The trial court correctly observed that Lee suffered from depression not related to substance abuse or addiction. But there was no evidence that Lee was suffering from depression at the time he committed his offense or at the time of sentencing, that he needed specialized treatment, or that he was amenable to treatment. Thus, there is no competent, substantial evidence to support a departure based on this factor.”

Because this statutory downward departure basis only applied if Lee was suffering from a mental disorder at the time of the defendant’s allegedly criminal conduct, the 1st DCA ruled that the trial judge erred by applying it to Lee’s case.

Next, the 1st DCA rejected the trial judge’s reliance upon nonstatutory mitigators to support the downward departure. Finding these had no basis in the law, the 1st DCA wrote:

“None of the non-statutory mitigating factors relied on by the trial court were legally permissible to sustain a departure sentence. Initially, the trial court pointed to Lee’s potential for rehabilitation as a reason for imposing a lesser sentence. However, amenability to rehabilitation has been rejected as a valid reason for a departure. … Next, the court relied on Lee’s employment history and contribution to the community as a physician as mitigating factors. But the fact that Lee is employed as a family practitioner who is highly valued by his patients is not a sufficient reason to depart from the Criminal Punishment Code. As the Fourth District observed: “All defendants suffer the consequences of a criminal conviction. The sentencing guidelines do not provide special treatment for the trained, educated or licensed. To achieve equality in sentencing, trial judges must be blind as to the color of a defendant’s collar.”

“The trial court also noted that Lee had the support of his family when it decided to impose a departure sentence. However, the fact that a defendant has strong family support has been rejected as a valid reason for a departure. … Finally, the court relied on Lee’s lack of criminal history. This is not a valid reason for departing because a defendant’s criminal history is considered when calculating his minimum permissible sentence…. Thus, none of the non-statutory mitigators were permissible considerations in accordance with legislative sentencing policies. As neither the statutory mitigator nor the non-statutory mitigators supported a downward departure, the trial court erred in sentencing Lee.”

In sum, Lee v. State, 223 So.3d 342 (Fla. 1st DCA 2017) marks a significant development in Florida’s corpus of case law surrounding downward departures in solicitation and traveling to meet a minor cases. The 1st DCA (North FL’s highest court) held that:

• The trial judge improperly used Lee’s depression at the time of sentencing as a statutory mitigator, when he did not suffer from a mental disorder at the time of the offense
• None of the nonstatutory mitigators cited by the judge (occupation, family, etc.) were applicable to the case under Florida law
• As none of the grounds for a downward departure sentence for Lee were legally valid, the 1st DCA ordered Lee be sentenced to at least 45 months in prison (e.g. bottom of the scoresheet) 

Florida’s criminal defense community should take note of Lee v. State, 223 So.3d 342 (Fla. 1st DCA 2017), as it shows that arguments for downward departures must be made very carefully. Otherwise, a defendant who received no time behind bars (like Lee) could be facing a prison sentence after a successful State cross-appeal.

In the event someone is charged with a lewd or lascivious offense or charged with traveling to meet a minor, 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 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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