Top Judge Disagrees With Florida Supreme Court’s New Test for Double Jeopardy in Traveling Cases

October 30, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In a recent concurring opinion, Judge Bradford Thomas of Florida’s 1st District Court of Appeal argues that Lee v. State was wrongly decided by the Florida Supreme Court.

In Florida, someone may be arrested and charged with both solicitation of a minor (Fla. Stat. 847.0135(3)) and traveling to meet a minor (Fla. Stat. 847.0135(4)). The former offense is a third-degree felony (up to 5 years in prison), the latter (traveling) is a second-degree felony (up to 15 years in prison and a $10,000 fine).

A key issue that is often raised in traveling and solicitation cases, when these charges are brought together, is a concern that someone’s double jeopardy protections are being violated. 

Because all of the elements of solicitation are subsumed by the elements of traveling (someone must solicit before traveling to be guilty of traveling), charging both offenses risks punishing a defendant twice for the same criminal conduct. This is considered “double jeopardy” under the Fifth Amendment of the U.S. Constitution. Blockburger v. United States, 284 U.S. 299 (1932)

To clarify this, let’s take a look at the elements of solicitation. For someone to be proven guilty of online solicitation of a minor, the State must establish all of the following:

• 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 to engage in sexual activity (or attempt to do so)
• The communication was with a minor (under the age of 18) or someone believed by the defendant to be a minor

For someone to be guilty of traveling to meet a minor, the State must prove all of the following occurred 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 to engage in sexual activity (or attempt to do so)
• The communication was with a minor (under the age of 18) or someone believed by the defendant to be a minor
• 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

As solicitation itself is a key component of traveling to meet a minor, someone may only be convicted of both offenses if they sent one (or more) solicitous message(s) that did not result in traveling, as well as one that did. 

Note: Solicitation of a minor (or person believed to be a minor, such as an undercover officer) does not require someone to request an explicit sex act. However, unlawful sexual activity must be the clear intent of the defendant’s communication(s). For more on this, click here.

This means that in a case where the State has charged both solicitation and traveling, it must be made clear that the communication which produced the solicitation charge is separate from the one that produced the traveling charge. But how does the State actually show that?

This question was answered by the Florida Supreme Court in Lee v. State, 258 So. 3d 1297 (Fla. 2018). The Court held that if both traveling and solicitation of a minor are charged, the State must make clear in the information (charging document) that the message which produced the solicitation charge is different from the one that produced the traveling charge.

In other words, someone must send one (or more) solicitous message(s) that did not result in traveling for the purpose of unlawful sexual activity – and a different one that did result in traveling – to be separately convicted of solicitation and traveling.

Lee held that if the defendant makes a showing that they are being charged twice for the “same message” in a pretrial motion to dismiss, the solicitation charge must be thrown out. This is because convictions for both offenses stemming from the single solicitation would violate double jeopardy (two punishments for the same crime).

The Florida Supreme Court’s Lee decision was quite significant, as Florida’s District Courts of Appeal were divided on when charges of both solicitation of a minor and traveling to meet a minor violate double jeopardy. However, there has been lots of criticism of Lee, including from prominent judges.

One of them is Judge Brad Thomas of Florida 1st District Court of Appeal. In his concurring opinion in Newcombe v. State, 292 So. 3d 907 (Fla. 1st DCA 2020), he questioned the logic of Lee’s “information test” and discussed his differing interpretation of the Fifth Amendment’s Double Jeopardy Clause. Let’s discuss it.

KEY CASE: Newcombe v. State, 292 So. 3d 907 (Fla. 1st DCA 2020)

In Newcombe, the defendant (Newcombe) pled guilty to one count of online solicitation of a minor and one count of traveling to meet a minor. He was sentenced to 5 years in prison.

On appeal, Newcombe argued his plea was legally invalid under Lee v. State, 258 So. 3d 1297 (Fla. 2018). He asserted that in the information (charging document), the State did not specify that the “solicitation message” was different from the “traveling message.” Because he could have been punished twice from the “same conduct,” he claimed his sentence was illegal.

The 1st DCA (Tallahassee and North Florida’s highest court) disagreed with Newcombe and upheld the validity of his plea. The court noted that the “information test” did not apply here, as Newcombe took a plea, writing:

“Unlike the situation in Lee, where only charged conduct is allowable at trial, plea negotiations are not so limited and can be based on relevant but uncharged information. In the context of plea negotiations, the charging document need not be as strictly constructed as to those counts that might form the basis for a double jeopardy violation.”

“Here, for instance, the charging document could have been drafted more broadly to include two or more solicitation counts, making it likely that Newcombe was willing to enter a plea as to the one count of solicitation and the one count of traveling presented, and that he accepted that a factual basis existed for doing so, as the trial judge noted.”

In essence, Newcombe conceded by pleading guilty (in the eyes of the 1st DCA) that the State could prove the message that produced the solicitation charge was different from the one that produced the traveling charge. As a result, Lee did not apply.

More intriguing than the majority opinion, however, was Judge Bradford Thomas’s concurrence. Judge Thomas called for the Florida Supreme Court to “recede” from its decision in Lee v. State, because he claimed that it fundamentally distorted the meaning of the Double Jeopardy Clause. He wrote:

“The supreme court in Lee did not cite to any constitutional precedent establishing that an imprecise information violates a criminal defendant’s constitutional right to avoid multiple punishments for the same conduct under the Double Jeopardy Clause.”

“Rather, the supreme court’s decision in Lee conflates the remedy for a criminal defendant to oppose a successive prosecution, when a defendant has been previously acquitted or previously prosecuted, which is a pre-trial motion to dismiss under Florida Rule of Appellate Procedure 3.190(b)… with the remedy to prevent multiple punishments, which can only be sought ‘at the end of the trial, not at the beginning.’”

Put simply, Judge Thomas argued that the proper remedy for a double jeopardy violation is not a pretrial dismissal motion. This is because, as he sees it, this constitutional provision is not about preventing multiple charges for the “same conduct” (or even multiple convictions). Instead, it is about preventing multiple punishments. He concluded: 

“In other words, if a criminal defendant alleges that the State is attempting to prosecute him for multiple crimes based on the same conduct, he should move for a statement of particulars, establish that fact, and only after multiple convictions can he assert that he cannot be punished twice for the same criminal conduct.”

Because the Fifth Amendment’s Double Jeopardy Clause bars multiple punishments for the same crime (according to Judge Thomas) rather than multiple convictions, a defendant is not entitled to have the solicitation of a minor charge tossed out before their trial. They can only move to prevent a sentence (not a conviction) for both counts.

Even if the charging document does not make clear that the State is punishing different criminal acts, Judge Thomas does not see this as an issue that can be resolved by a motion to dismiss the charges before trial, as Lee v. State, 258 So. 3d 1297 (Fla. 2018) permits. Instead, he argues that only after being convicted of both counts can a defendant raise the issue.

Supporters of Judge Thomas’s logic are likely to laud his textualist (strict reading) approach to the Double Jeopardy Clause. However, critics are likely to argue that many defendants will not move for a “statement of particulars” after their conviction. This may result in them being punished multiple times for the same conduct – without their knowledge.

Some may also argue Judge Thomas’s concurrence puts too much of a burden on the defendant. Critics are likely to claim the State should not be able to sneak in a double jeopardy violation that must be “called out” by the defense after trial – when this may seem futile due to the fact that a conviction has already been returned.

In sum, Judge Thomas’s concurring opinion in Newcombe v. State, 292 So. 3d 907 (Fla. 1st DCA 2020) is a fascinating exploration (and criticism) of the Florida Supreme Court’s read of the U.S. Constitution’s Double Jeopardy Clause. 

In Lee, the Court interpreted the Double Jeopardy Clause in traveling and solicitation cases to bar multiple charges stemming from the “same course of conduct” (same solicitous communication). But Judge Thomas thinks this is incorrect – as in his view, the Fifth Amendment only prevents multiple punishments. This intriguing debate is likely to continue among Florida jurists.

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 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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