IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

BRIAN MITCHELL LEE,                   NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant/                      DISPOSITION THEREOF IF FILED
      Cross-Appellee,
                                      CASE NOS. 1D15-0943 & 1D15-0945
v.

STATE OF FLORIDA,

     Appellee/
     Cross-Appellant.
____________________________/

Opinion filed June 1, 2017.

An appeal from the Circuit Court for Escambia County.
Terry D. Terrell, Judge.

Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public
Defender, Tallahassee, for Appellant/Cross-Appellee.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney
General, Tallahassee, for Appellee/Cross-Appellant.


                  ON MOTION FOR REHEARING EN BANC

ROWE, J.

      We grant the State’s motion for rehearing en banc, vacate our prior opinion

issued on November 28, 2016, and substitute the following opinion:

      Brian Mitchell Lee challenges his convictions for (1) traveling to meet a minor

to engage in sexual conduct; (2) the unlawful use of a two-way communications

                                         1
device to facilitate the commission of a felony; and (3) using a computer to facilitate

or solicit the sexual conduct of a child. We affirm as to all issues raised by Lee, but

write to address only one. He argues that the decisions in State v. Shelley, 

914 (Fla. 2015), and Hamilton v. State, 

(Fla. 1st DCA 2015),

compel reversal of two of his convictions on double jeopardy grounds. The State

seeks review of the trial court’s departure sentence in a separate appeal. 1

      We affirm Lee’s convictions for all three offenses because, unlike in Shelley

and Hamilton, his multiple convictions were not based on the same conduct. Rather,

Lee’s convictions arose from separate criminal episodes and distinct criminal acts;

thus, they do not violate the prohibition against double jeopardy. But we reverse

Lee’s sentences and remand for resentencing because the trial court improperly

departed downward when imposing the sentences.

                           I. Facts & Procedural History

      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



1
 These appeals were consolidated for all purposes, and the State’s appeal was treated
as a cross-appeal.
                                          2
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.

      The State charged Lee by information with three felony offenses: traveling to

meet a minor to engage in sexual conduct, unlawful use of a two-way

communications device to facilitate the commission of a felony, and using a

computer to facilitate or solicit the sexual conduct of a child. Lee moved to dismiss

the charges, arguing that counts one and three violated double jeopardy, because the

elements of solicitation were subsumed within the offense of traveling to meet a

minor. He also argued that counts one and two violated double jeopardy, because

the elements of using a two-way communications device were subsumed within the

offense of traveling, and that both offenses occurred within a single episode. The

trial court denied the motion, and the case proceeded to trial.

      Through the testimony of the investigating officer, the State introduced into

evidence the entire transcript of the communications between Lee and “Matt.” The

testimony demonstrated that the communications occurred over the course of twelve

days and involved multiple acts of solicitation.




                                          3
      After the State rested, Lee admitted during his testimony that the transcript of

communications introduced into evidence was accurate. He asserted that he placed

the ad on Craigslist to meet adult males. He declared that he was certain that “Matt”

was a police officer from the beginning, but decided to play along because he wanted

to “get back” at the police for targeting homosexuals in these types of undercover

operations. Dr. Julie Harper, a clinical and forensic psychologist, testified that Lee

had a narcissistic and obsessive compulsive personality and that he had previously

been diagnosed with depression. She described Lee, a family physician, as highly

intelligent with a lot of inner pain and low self-esteem.

      The jury returned a guilty verdict on all three counts, and the case proceeded

to sentencing. Lee’s Criminal Punishment Code scoresheet established a minimum

permissible sentence of forty-five months’ imprisonment. He filed a sentencing

memorandum, requesting a downward departure based on several non-statutory

mitigators. 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

                                          4
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. This appeal

and cross-appeal follow.

                                     II. Analysis

      We begin our analysis with a discussion of double jeopardy principles,

including: (i) which party bears the burden to demonstrate a double jeopardy

violation; (ii) the three-step test to be applied to determine whether multiple

                                          5
convictions violate the prohibition against double jeopardy; and (iii) the factors and

evidence to be considered when applying the three-step test. Next, we explain why

the holdings in Shelley and Hamilton have no application to our double jeopardy

analysis in this case. Then, we apply these principles to explain why Lee’s multiple

convictions do not violate the prohibition against double jeopardy. Finally, we

explain why the trial court erred in imposing the downward departure sentence.

                          A. Double Jeopardy Principles

      The Double Jeopardy Clause provides protection from three separate types of

double jeopardy. “[It] protects against a second prosecution for the same offense

after acquittal. It protects against a second prosecution for the same offense after

conviction.    And it protects against multiple punishments for the same

offense.” Ohio v. Johnson, 

, 498 (1984) (quoting North Carolina v.

Pearce, 

, 717 (1969)). Here, Lee argues that he received multiple

punishments for the same offense; thus our analysis concerns this type of double

jeopardy claim.

              i. Burden to Demonstrate a Double Jeopardy Violation

       The party alleging error bears the burden to demonstrate reversible error on

appeal. See Stone v. Stone, 

, 630 (Fla. 2d DCA 2004). And when it

is a defendant appealing a trial court’s ruling, “the defendant bears the burden of

demonstrating that an error occurred in the trial court.” Jones v. State, 

486, 488 (Fla. 2006) (quoting Goodwin v. State, 

, 544 (Fla. 1999)).

A defendant alleging a double jeopardy violation is in no different position; it

remains the defendant’s burden to establish that a double jeopardy violation has

occurred. See Sprouse v. State, 

, 787 (Fla. 1st DCA 2016) (“Sprouse

has not met his burden of showing his multiple convictions violate double

jeopardy.”); Edwards v. State, 

, 983 (Fla. 1st DCA 2014) (“The

burden of proof was Edwards’ to demonstrate error in this case.”); see also Capron

v. State, 

, 957 (Fla. 5th DCA 2007) (observing that a defendant bears

the burden of proving a double jeopardy violation). And after a jury trial, the burden

to demonstrate error is especially heavy as the reviewing court must view “the

evidence in the light most favorable to the jury verdict.” Williams v. State, 

931, 933 (Fla. 1st DCA 2012).

            ii. Three-Step Test for Analyzing Double Jeopardy Claims
                          Alleging Multiple Punishments

      A court reviewing a double jeopardy claim alleging multiple punishments

must apply a three-step test. State v. Paul, 

, 1172-73 (Fla. 2006).

We explained how the test should be applied in Partch v. State, 

, 760

(Fla. 1st DCA 2010): First, we must determine whether the convictions “were based

on an act or acts which occurred within the same criminal transaction and/or

episode.” 

the convictions arose from the same criminal episode, we

“must then determine if the convictions were predicated on distinct acts.” 

“[i]f the charges are not predicated on distinct acts and have occurred within the

same criminal episode, we must next decide if the charges survive a same elements

test as defined by section 775.021, Florida Statutes [(2013)], commonly referred to

as the Blockburger analysis.” 

Blockburger v. United States, 

(1932)). Thus, we only reach the third step of the analysis, the so-called “same

elements” test, if the first two questions are answered in the negative. See Graham

v. State, 

, 141 (Fla. 2016) (clarifying that the same elements test

applies when a defendant is convicted under multiple statutes for a single criminal

act); Tindal v. State, 

, 923-34 (Fla. 4th DCA 2014) (engaging in same

elements analysis only after concluding that the offenses occurred during the same

criminal episode and that the charges were not based on distinct acts); Sanders v.

State, 

, 375 (Fla. 1st DCA 2012) (explaining that if the charged

offenses occurred in separate episodes or involved distinct acts, no further analysis

is required to conclude that the offenses do not violate double jeopardy).

                iii. Factors and Evidence to Consider in Each Step

      Each of the three steps of the double jeopardy test requires application of

different factors and consideration of specific types of evidence. In the first step,

when determining whether the defendant’s convictions arose from offenses

occurring in one or more criminal episodes, the reviewing court examines “whether

there are multiple victims, whether the offenses occurred in multiple locations, and

                                          8
whether there has been a ‘temporal break’ between offenses.” 

(quoting Murray v. State, 

, 453 (Fla. 2d DCA 2004)). The

existence of a separation in time, place, or circumstance allows the court to ascertain

“whether the defendant had time to pause, reflect, and form a new criminal intent

between occurrences.” Hammel v. State, 

, 635 (Fla. 2d DCA 2006)

(quoting Eaddy v. State, 

, 1095 (Fla. 4th DCA 2001)). Minimal

lapses in time can be sufficient for a defendant to form a new criminal intent between

offenses. See White v. State, 

, 957-58 (Fla. 4th DCA 2006); Burrows

v. State, 

, 903 (Fla. 1st DCA 1995) (superseded by statute on other

grounds as stated in Jupiter v. State, 

(Fla. 1st DCA 2002)).

      When determining whether offenses occurred during the same criminal

episode, the reviewing court examines the entire record, including all evidence

admitted at trial. See 

(examining the record to determine

whether the defendant’s convictions arose from a single criminal episode); 

(relying on the record to determine whether appellant’s convictions

arose from offenses occurring in the same criminal episode); Williams, 

at

933 (relying on the record to determine whether appellant’s convictions were based

on offenses occurring in a single criminal episode); Nicholson v. State, 

(Fla. 4th DCA 2000) (holding that the defendant’s convictions under

identically worded counts of throwing a deadly missile into a dwelling did not

                                          9
violate double jeopardy because the evidence presented at trial clearly distinguished

between the two counts).

      If, and only if, we determine that multiple offenses occurred during a single

criminal episode do we proceed to the second step of the test. This step involves the

determination of whether the offenses are based on distinct criminal acts. In

assessing whether acts are distinct, the reviewing court examines “whether there was

(1) a temporal break between the acts, (2) intervening acts, (3) a change in location

between the acts; and/or (4) a new criminal intent formed.” 

(citing Hayes v. State, 

, 700 (Fla. 2001)). The Florida Supreme Court

has described a distinct act as:

      “[W]hen the impulse is single, but one indictment lies, no matter how
      long the action may continue. If successive impulses are separately
      given, even though all unite in swelling a common stream of action,
      separate indictments lie.” Wharton’s Criminal Law (11th Ed.) § 34. Or,
      as stated in note 3 to that section, “The test is whether the individual
      acts are prohibited, or the course of action which they constitute. If the
      former, then each act is punishable separately. If the latter, there can be
      but one penalty.”

(quoting 

). A similar

analysis was applied in R.J.R. v. State, 

, 268 (Fla. 1st DCA 2012),

when this Court observed, “the State failed to establish that the acts occurred in

different locations, that there was any temporal break between the two acts that

would have enabled R.J.R. to reflect and form a new criminal intent for the second

act, or that there were any intervening acts interrupting R.J.R.’s resisting arrest.”
                                          10
      Just as was required in the first step of the test, step two requires the

examination of the entire record before a court may conclude that multiple acts are

distinct for double jeopardy purposes. See 

(relying on

the record to determine whether the defendant’s multiple convictions were based on

distinct acts); McCarter v. State, 

, 530 (Fla. 1st DCA 2016)

(concluding that the record established two distinct acts of solicitation, a request for

illicit pictures and a solicitation for a lewd or lascivious molestation, to support

appellant’s dual convictions for solicitation and traveling). This Court applied the

distinct acts test in our decision in Harris v. State, 

, 924 (Fla. 1st DCA

2013), and examined the entire record to determine whether the facts reflected “an

uninterrupted series of acts, as opposed to distinct acts separated by time, intervening

acts, or different locations.”

      Third, and only after determining that the conduct involved did not arise from

separate criminal episodes or distinct acts occurring during a single criminal episode,

the reviewing court must apply the third step of the analysis, same elements test. In

this step, the court must determine whether each of the charged offenses requires

proof of an element that the other does not. § 775.021(4)(a), Fla. Stat. (2013). The

general rule is that the Legislature intends to allow punishment for each criminal

offense committed during a single criminal episode or transaction. Harris, 

at 924. But three statutory exceptions to that rule must be considered, to wit:

                                          11
      1. Offenses which require identical elements of proof.
      2. Offenses which are degrees of the same offense as provided by
      statute.
      3. Offenses which are lesser offenses the statutory elements of which
      are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2013).

      Significantly, when applying the same elements test, the reviewing court’s

analysis is limited to examining the elements of the statute, “without regard to the

accusatory pleading or the proof adduced at trial.” § 775.021(4)(a), Fla. Stat.

(2013); see also Glover v. State, 

, 326 (Fla. 1st DCA 2010) (explaining

that the examination of facts is improper when applying the same elements test).

The supreme court recently reaffirmed the requirement to examine only the elements

of the statutes involved when applying the third step of the double jeopardy

analysis. See Roughton v. State, 

, 1210 (Fla. 2016) (holding that an

examination of anything other than elements of the charged offenses was contrary

to the plain language of the statute).

                              B. Shelley and Hamilton

      Lee argues that the supreme court’s decision in Shelley and our court’s

decision in Hamilton require reversal of his convictions for unlawful use of a two-

way communications device and solicitation because both offenses are subsumed

within his conviction for traveling after solicitation. We disagree. Both Shelley

and Hamilton are cases where the reviewing court has proceeded to the third step of

                                         12
the double jeopardy analysis and applied the same elements test. Thus, the holdings

in those cases apply only where the reviewing court has determined that the

defendant’s convictions were based on conduct which occurred in a single criminal

episode and did not involve distinct criminal acts. And neither decision disturbs

well-established precedent that double jeopardy “does not prohibit multiple

convictions and punishments where a defendant commits two or more distinct

criminal acts.” 

(emphasis in original). Because Lee’s

convictions arise both from separate criminal episodes and distinct criminal acts, the

rationale in Shelley and Hamilton is not applicable and does not bar his multiple

convictions.

                                     i. Shelley

      Following a plea, Shelley was convicted of a single count of traveling and a

single count of solicitation. Shelley, 

at 916-17. Shelley argued that his

convictions violated double jeopardy because solicitation was a lesser-included

offense of traveling after solicitation. On review, the supreme court agreed that a

double jeopardy violation occurred. The court did not expressly analyze whether

Shelley’s convictions for traveling and solicitation arose from separate criminal

episodes or involved distinct criminal acts. 

Instead, the court limited

its analysis to applying the third step of the double jeopardy test. However, the




                                         13
supreme court applied only this step of the analysis because it concluded Shelley’s

dual convictions were based on the same conduct.

      Although Shelley communicated “[o]ver the course of several days” with an

undercover officer “posing as a single mother nudist ‘looking for family fun,’” the

court’s opinion indicates that only a single act of solicitation was involved. 

The supreme court specifically observed that the “State relied upon the same

conduct to charge both offenses.” 

(emphasis added). And the court

expressly held that “Shelley’s dual convictions for solicitation and traveling after

solicitation based on the same conduct impermissibly place[d] him in double

jeopardy.” 

(emphasis added). Thus, because it concluded that Shelley’s

offenses were based on a single criminal act of solicitation, the court proceeded to

apply the same elements test to determine whether the elements of solicitation were

subsumed by the elements of traveling after solicitation. 

; see also 

(holding that when a defendant is convicted under multiple statutes

for a single criminal act, a reviewing court applies the same elements test); 

(applying the same elements test only after concluding that the

offenses occurred during the same criminal episode and that the offenses were not

based on distinct acts).

      When applying the third step, the court examined the language in section

847.0135(3), Florida Statutes, in which the Legislature authorized separate

                                         14
punishments for each use of a computer service or device to solicit a child and

determined that this language failed to “address what effect charging a solicitation

offense has on the State’s ability to use the same solicitation to charge the defendant

with traveling after solicitation.” 

(emphasis added). Holding that this

intent did not translate into an intent to authorize separate convictions for conduct

that constituted both solicitation and traveling after solicitation, the court applied the

same elements test and determined that the elements of solicitation were subsumed

within the elements of traveling after solicitation. 

supreme court’s holding is that “dual convictions for solicitation and

traveling after solicitation” violate double jeopardy when they are “based on the

same conduct.” 

. Shelley does not proscribe convictions for traveling and

solicitation based on either (1) multiple acts of solicitation that occur during separate

criminal episodes or (2) distinct acts of solicitation that occur during a single

criminal episode. And Shelley does not disturb well-established precedent allowing

for multiple punishments where a defendant commits multiple criminal acts.

Accordingly, dual convictions for solicitation and traveling are not barred by Shelley

and do not violate double jeopardy, if the record demonstrates that the defendant

made two or more solicitations. Rather, the holding in Shelley is limited to cases

where the defendant is convicted of both solicitation and traveling after solicitation

based on a single act of solicitation.

                                           15
                                    ii. Hamilton

      Lee also attempts to rely on our decision in Hamilton to argue that his charges

of traveling after solicitation and unlawful use of a two-way communications device

violate double jeopardy, but his argument 

. Hamilton

argued that his convictions for both offenses arose from the same criminal episode,

and thus, violated double jeopardy because the elements of unlawful use of a two-

way communications device were subsumed within the elements of traveling after

solicitation. 

and held that dual convictions for traveling after

solicitation and unlawful use of a two-way communications device violated the

prohibition against double jeopardy, when the offenses occurred during the course

of the same criminal episode. 

Although this Court did not expressly

examine whether there were distinct acts of solicitation, we implicitly did so by

proceeding to step three of the double jeopardy analysis and examining whether the

offenses contained the same elements. See 

; 

. Applying the same elements test, we concluded that Hamilton’s

dual convictions violated double jeopardy. 

.

      Based on our holding that Hamilton’s multiple convictions arose from a single

criminal episode and our application of only the third step of the double jeopardy

test, Hamilton does not proscribe convictions for traveling after solicitation and use

of a two-way communications device based either on distinct acts of solicitation

                                         16
occurring in multiple criminal episodes or on distinct acts of solicitation occurring

in a single criminal episode. Rather, the holding in Hamilton, like the holding

in Shelley, is limited to cases where the defendant is charged with multiple offenses

based on a single act of solicitation.

                         iii. Post- Shelley and Hamilton Decisions

      In some recent decisions, our sister courts have misconstrued the holdings

of Shelley and Hamilton in one or more of the following respects.2 First, in some

cases ostensibly involving separate criminal episodes or distinct acts, the courts

appear to have proceeded directly to the third step of the double jeopardy analysis

without examining whether the offenses arose from separate criminal episodes or

distinct acts. See, e.g., Thomas v. State, 

, 35 (Fla. 2d DCA 2016)

(concluding, despite evidence at trial of “increasingly lurid text messages and

communications” over the course of four days, that appellant’s convictions for

traveling and solicitation violated double jeopardy by examining only the charging

documents and without analyzing whether his convictions were based on distinct

acts of solicitation); Stapler v. State, 1

162, 164 (Fla. 5th DCA 2016)

(finding a double jeopardy violation despite evidence of multiple acts of solicitation,

and expressly declining to consider any information outside of the charging


2
  But see Griffith v. State, 

(Fla. 5th DCA 2017) (affirming
appellant’s convictions after concluding that the record did not demonstrate that the
convictions for traveling and solicitation were based on the same conduct).
                                          17
document). Those courts should have applied the three-step analysis outlined in Paul

and Partch and determined whether the convictions in those cases arose from a single

criminal episode or whether the convictions were based on distinct acts before

proceeding to the same elements test.

      Second, other courts have applied the first two steps of the double jeopardy

analysis but limited their review of the record to the charging document and the jury

verdict. See, e.g., Honaker v. State, 

, 1068 (Fla. 5th DCA 2016)

(granting relief on appellant’s postconviction double jeopardy claim by relying on

the information to determine whether offenses arose from the same conduct despite

evidence at trial that the defendant engaged in “inappropriate communications” over

the course of four days); Mizner v. State, 

, 400 (Fla. 2d DCA 2014)

(declining to consider the State’s argument that the evidence at trial showed that the

offenses occurred on different days during separate criminal episodes because the

information was not sufficiently specific). But, the proper application of steps one

and two of the double jeopardy analysis necessarily requires an examination of the

entire evidentiary record – examination of separate criminal episodes and distinct

criminal acts should not be limited to the charging document and the jury verdict.

      Third, it appears that some courts have implicitly and erroneously shifted the

burden to the State to show that the jury’s multiple guilty verdicts were not based on

a single act of solicitation, rather than requiring the appellant to show that the record

                                           18
could not support convictions for multiple offenses. 3 See, e.g., 

(holding that it may not assume that offenses were predicated on distinct acts

where neither the charging information nor the jury verdict form included specific

language predicating the charges on distinct acts). But in double jeopardy cases, it

is the appellant’s burden to demonstrate that an error occurred at the trial level, not

the State’s burden to show that error did not occur. See 

; 

.

        C. Application of the Three-Step Test to Lee’s Multiple Convictions

      Initially, we observe that the previous majority opinion implicitly shifted the

burden to the State to show that the jury did not convict Lee of all three offenses

based on a single act of solicitation when it held:

      In this case, although the proof at trial of text messages over several
      days established multiple uses of Appellant's cell phone to facilitate a
      felony and also established multiple solicitations, we cannot presume

3
  We acknowledge that some of the language in our Partch decision has been
construed to limit the distinct acts analysis to consideration of the charging
information and the jury verdict and to implicitly shift the burden to the State to
prove that an error did not occur. For example, the Fifth District relied on Partch to
support its conclusion that: “Neither the charging information nor the jury verdict
form included language clearly predicating the disputed charges on two distinct acts.
As a result, the State charged the offenses as occurring during a single criminal
episode, and we may not assume that they were predicated on distinct acts.” Holt v.
State, 

, 1081 (Fla. 5th DCA 2015). Recognizing that Partch has
been construed in this unintended manner, we now hold and clarify that a reviewing
court must examine the entire record before reaching a conclusion about whether
multiple convictions are based on distinct criminal acts. And the burden is on the
appellant to demonstrate that the record could not support multiple convictions.

                                          19
      with certainty that Appellant was not convicted of the same act in
      all three counts. 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 Appellant’s conviction were
      separate. Therefore we find that a double jeopardy violation has
      occurred.

Lee v. State, 

, *4 (Fla. 1st DCA Nov. 28, 2016) (emphasis added).

We repeat that it is the defendant’s burden to demonstrate on appeal that his

convictions violate double jeopardy, not the State’s burden to prove the

negative.   See 

; 

.

Consequently, having vacated our opinion issued on November 26, 2016, we

consider Lee’s claim of a double jeopardy violation under the framework outlined

in Section A of this opinion.

      To prevail on both of his double jeopardy claims, Lee must show that his

convictions were based on the same act of solicitation. But his claims must fail, if

the record establishes three or more criminal episodes of solicitations or three or

more distinct acts of solicitation. A separate solicitation is required to support each

of the counts charged in the information. One solicitation is required to support

Lee’s traveling after solicitation conviction, because all of the elements of

solicitation are subsumed within the offense of traveling after solicitation. Shelley,

at 919. A second solicitation is required to support Lee’s conviction for




                                          20
unlawful use of a two-way communications device. 

.

And a third solicitation is necessary to support the solicitation conviction.

      The State charged Lee as follows:

      BRIAN MITCHELL LEE, on or about January 2, 2014, at and in
      Escambia County, Florida, did knowingly travel any distance either
      within this state, to this state, or from this state by any means, or who
      attempted to do so, for the purpose of engaging in any illegal act
      described in Chapter 794, Chapter 800, or Chapter 827, Florida
      Statutes, or to otherwise engage in other unlawful sexual conduct with
      a child less than 18 years of age or with another person believed by the
      said BRIAN MITCHELL LEE to be a child less than 18 years of age,
      after using a computer on-line service, Internet service, local bulletin
      board service, or any other device capable of electronic data storage or
      transmission to seduce, solicit, lure or entice or attempted to seduce,
      solicit, lure, or entice a child or another person believed by BRIAN
      MITCHELL LEE to be a child, to-wit: a law enforcement officer
      posing as a 14-year-old male child, to engage in any illegal act
      described in Chapter 794, Chapter 800, or Chapter 827, Florida
      Statutes, or to otherwise engage in other unlawful sexual conduct with
      a child, in violation of Section 847.0135(4)(a), Florida Statutes.

      BRIAN MITCHELL LEE, on one or more occasions between
      December 22, 2013, and January 1, 2014, at an in Escambia County,
      Florida, did unlawfully and knowingly use a two-way communication
      device, to-wit: cellular telephone, to facilitate or further the
      commission of a felony offense, to-wit: Traveling to Meet a Minor
      to Engage in Sexual Conduct, in violation of Section 934.215, Florida
      Statutes.

      BRIAN MITCHELL LEE, on one or more occasions between
      December 22, 2013, and January 1, 2014, at and in Escambia County,
      Florida, did knowingly utilize a computer on-line service, Internet
      service, or local bulletin board service, or any other device capable of
      electronic data storage or transmission to seduce, solicit, lure, or entice,
      or attempt to seduce, solicit, lure, or entice a child or another person
      believed by the said BRIAN MITCHELL LEE to be a child less than
      18 years of age, to-wit: a law enforcement officer posing as a 14-
                                          21
       year-old male child, to commit any illegal act described in Chapter
       794, relating to sexual battery; Chapter 800, relating to lewdness and
       indecent exposure; or Chapter 827, relating to child abuse, or to
       otherwise engage in any unlawful sexual conduct with a child or with
       another person believed by the said BRIAN MITCHELL LEE to be a
       child, in violation of Section 847.01325(3)(a), Florida Statutes.

Thus, the unlawful use of the two-way communications device and solicitation

counts were charged as occurring “on one or more occasions between December

22, 2013 and January 1, 2014.” The traveling after solicitation count was charged

as occurring on January 2, 2014. But because there was no evidence of a solicitation

on January 2, 2014, the solicitation required to support the traveling count must have

occurred during the period the parties were communicating via email: December

22, 2013 through January 1, 2014. The solicitations required to support the other

two counts also must have occurred during the same eleven-day period.

       Based on the unambiguous language of the information, Lee was on notice

and the jury could find that Lee committed multiple acts of solicitation during the

charged period. Further, neither the jury instructions nor the verdict form limited

the jury to considering only one act of solicitation for all three offenses. Rather, both

were general and contained no reference to any date or any specific act of

solicitation.

       But despite the express language of the information alleging one or more acts

of solicitation over the course of eleven days, Lee argues that the charging

documents, jury instructions, and the verdict form were not sufficiently specific to
                                           22
allow the jury to base each of his convictions on a separate solicitation.4 This

argument is meritless for two reasons. First, the State is not required to allege in the

information the specific solicitation associated with each count charged in the

information or listed on the verdict form to defeat a double jeopardy

claim. 5 See Fravel v. State, 

, 971 (Fla. 4th DCA 2016) (holding that

double jeopardy was not implicated by a two-count information that charged the

defendant with two degrees of the same offense where the evidence at trial clearly

distinguished between the two counts); 

(rejecting a

double jeopardy claim based on two counts of throwing an object into a house where

“the evidence at trial clearly distinguished between the two separate offenses.”).

Second, to determine whether multiple solicitations occurred during different

criminal episodes or whether there were distinct acts of solicitation within a single

criminal episode, we are required to review the record in its entirety. 

(relying on evidence presented at trial to determine whether appellant’s


4
  The trial court went over the jury instructions line-by-line with both parties.
Defense counsel agreed to the standard jury instructions and did not request any
special instructions. See Jaimes v. State, 

, 448 (Fla. 2010) (holding
that jury instructions are subject to the contemporaneous objection rule). Further,
defense counsel agreed to the verdict form proposed by the court. See Morris v.
State, 

, 156 (Fla. 1st DCA 1995) (holding that a contemporaneous
objection is required to preserve an argument about an error in a verdict form).
5
  Florida Rule of Criminal Procedure 3.140(n) permits a defendant to file a motion
for a statement of particulars if the defendant believes that the information is
insufficient to allow preparation of a proper defense. Lee did not file such a motion.
                                          23
convictions were based on distinct acts); 

(relying on the

record to determine whether appellant’s convictions occurred in the same criminal

episode). When viewed in the light most favorable to the jury’s verdict, the record

shows that Lee’s convictions were based on conduct that occurred during separate

criminal episodes and involved at least five distinct acts of solicitation.

  i. Step One – Lee’s Solicitations Occurred During Multiple Criminal Episodes

      To determine whether Lee’s multiple convictions arose from conduct

occurring during a single criminal episode, we consider the following factors:

whether there were multiple victims, whether the criminal offenses occurred in

multiple locations, and whether there was a temporal break between

offenses. 

. It is undisputed that this case does not involve

multiple victims. However, the record demonstrates that over the course of eleven

days, Lee committed multiple acts of solicitation using his two-way communications

device from multiple locations. The trial testimony established that Lee solicited the

investigator using his mobile phone from his home, from his office, and from the

dog track.

      In addition to the undisputed evidence of multiple locations, there were

several significant temporal breaks between Lee’s solicitations of the person he




                                          24
thought was a fourteen-year-old.6 A review of the emails in the record shows that

almost thirteen hours elapsed between Lee’s first and second conversations with the

investigator. The longest temporal break in communication was seventy-two hours;

this occurred when Lee traveled out of state for the holidays. Another significant

break in communication occurred between December 26 and December 27 when

over sixteen hours elapsed before Lee and the investigator resumed communication.

And, during the next four days, there were five-hour, eleven-hour, and twelve-hour

breaks in their conversations. The email communications show that Lee slept, went

to work, traveled, and socialized when he was not communicating with “Matt.”

These breaks gave Lee ample opportunity to pause and reflect on the legality of his

actions. 

(holding that appellant had time to form a new

criminal intent while waiting for the victim to emerge from the bathroom); Duke v.

State, 

, 494 (Fla. 2d DCA 1984) (holding that “a matter of seconds”

was sufficient for appellant to form a new criminal intent between sexual battery

offenses); Bass v. State, 

, 1183 (Fla. 5th DCA 1980) (holding that

the time it took appellant to drive to a more isolated location was sufficient for

appellant to form a new criminal intent between sexual battery offenses).




6
 The distinct acts of solicitation and the times they occurred will be more fully
described in the following section.
                                        25
      Thus, viewing the record in the light most favorable to the jury’s verdict, we

hold that the solicitations in this case occurred during the course of multiple criminal

episodes. Therefore, Lee cannot show he was convicted for multiple offenses of

solicitation arising from the same criminal episode. This conclusion alone is

sufficient to defeat his double jeopardy arguments. See 

(holding that appellant was properly charged for each internet conversation without

violating double jeopardy protections because each conversation was a distinct

criminal episode).

             ii. Step Two – Lee’s Multiple Distinct Acts of Solicitations

      However, even were we to assume that the conversations between Lee and the

investigator should be treated as a single ongoing eleven-day criminal episode, we

would conclude that the record includes evidence of multiple, distinct acts of

solicitation. In assessing whether Lee’s acts during the eleven-day conversation

constitute distinct acts, we examine the record to determine whether there were

temporal breaks, intervening acts, changes in locations, and time to form a new

criminal intent between Lee’s solicitations. 

. As discussed

above, the record must show at least three separate and distinct acts of solicitation

to uphold Lee’s convictions.




                                          26
      The uncontroverted record before this Court shows that Lee solicited the

investigator at least five times for different unlawful acts, from different locations,

and at different times via a two-way communications device (his mobile phone):

      1. On December 26, 2013, between 5:46 p.m. and 8:12 p.m., Lee
      solicited “Matt” for a lewd or lascivious battery 7 by offering to teach
      “Matt” how to perform oral sex. This solicitation occurred while Lee
      was in Indiana visiting his family for the holidays.

      2. The second solicitation occurred the following night on December
      27, 2013, between 11:16 p.m. and 11:49 p.m., as Lee was traveling back
      to Florida. At that time, Lee solicited “Matt” for lewd or lascivious
      molestation 8 when he asked to grab “Matt’s” buttock and genital area.

      3. Another solicitation for lewd or lascivious battery occurred an hour
      later when Lee offered to perform oral sex on “Matt.” Lee was still
      traveling back to Florida at this point as he mentioned stopping to
      refuel.

      4. The solicitations resumed two days later on December 30, 2013,
      between 8:08 p.m. and 8:57 p.m. when Lee was at home. At that time,
      Lee solicited “Matt” for another lewd and lascivious battery by
      describing in detail a fantasy about engaging in sexual conduct at a
      water park with “Matt,” who would appear to others to be his son.

7
  Lewd or lascivious battery is defined as “engaging in sexual activity with a person
12 years of age or older but less than 16 years of age.” § 800.04(4)(a)1., Fla Stat.
(2013). For the purposes of this statute, sexual activity is defined as “the oral, anal,
or vaginal penetration by, or union with, the sexual organ of another or the anal or
vaginal penetration of another by any other object; however, sexual activity does not
include an act done for a bona fide medical purpose.” § 800.04(1)(a), Fla. Stat.
(2013).
8
  Lewd or lascivious molestation occurs when: “A person who intentionally touches
in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the
clothing covering them, of a person less than 16 years of age, or forces or entices a
person under 16 years of age to so touch the perpetrator . . . .” § 800.04(5)(a), Fla.
Stat. (2013).
                                        27
      5. The final solicitation occurred three days later on January 1, 2014
      (the day before Lee traveled to meet “Matt”), at 10:22 p.m. when Lee
      solicited Matt for a lewd or lascivious battery by discussing the
      performance of oral sex. Lee was at home when this conversation
      occurred.

      Lee solicited the investigator for unlawful sex acts over an eleven-day time

span with up to a three-day temporal break between solicitations. Those breaks in

time gave Lee ample opportunity to pause and reflect on the legality of his

actions. 

; 

. Lee also changed

locations between solicitations. He solicited the investigator while visiting family

in Indiana, while returning to Florida, and while he was at home. And finally, the

solicitations were distinct in character. Lee solicited the person he thought to be a

minor for multiple, distinct acts of lewd or lascivious battery and lewd or lascivious

molestation.

      Based on the multiple temporal breaks between communications, the multiple

locations involved, and the different types of unlawful acts Lee solicited, we hold

that the record established no fewer than five distinct acts of solicitation. This

evidence of five distinct solicitations is more than sufficient to support Lee’s three

convictions: one solicitation to prove the underlying offense necessary for his

conviction for traveling to meet a minor, a second solicitation to prove the

underlying offense necessary for his conviction for unlawful use of a two-way

communications device, and a third solicitation to prove that he used a computer to

                                         28
solicit a child. And even if all five of the solicitations had occurred during the same

criminal episode, we would still hold these acts to be separately punishable, because

the Legislature has expressed its intent to charge and punish each separate act of

solicitation. See § 847.0135(3), Fla. Stat. (2013).

      Accordingly, viewing the record in the light most favorable to the jury’s

verdict, we conclude that Lee’s convictions for traveling after solicitation, unlawful

use of a two-way communications device, and soliciting a minor do not violate

double jeopardy because his convictions were based on distinct criminal acts. Based

on this conclusion, we need not proceed to step three of the double jeopardy analysis

– the same elements test.9 Our analysis of Lee’s double jeopardy claim ends here.

                         D. Downward Departure Sentence

      The State appeals the trial court’s imposition of the downward departure

sentence in this case. The imposition of a downward departure sentence is a two-

part process. Childers v. State, 

, 172 (Fla. 1st DCA 2015). First, the

trial court must determine whether there is a legal reason for departure and factual

support for that reason. 

of the trial court’s decision will be sustained

on appellate review if the court applied the correct rule of law and if competent,

substantial evidence supports its ruling. 

trial court must determine


9
  Had Lee’s convictions been based on a single act of solicitation occurring during a
single criminal episode, then the decision in Shelley would have required reversal of
his solicitation conviction.
                                          29
whether departure is the best sentencing option for the defendant by weighing the

totality of the circumstances, including aggravating and mitigating factors. 

this portion of the trial court’s decision for an abuse of discretion. 

State argues that the trial court erred in imposing a downward

departure sentence because there was no evidence to support the court’s statutory

ground for departure (that Lee required specialized treatment for a mental disorder

that was unrelated to substance abuse or addiction) and because the non-statutory

grounds (Lee’s ability to be rehabilitated, his contribution to the community, his

employment history, his family background, and his lack of a criminal history) were

not valid reasons for departure. We agree.

                                   i. Preservation

      Before the merits of this argument may be addressed, we must first determine

whether the State properly preserved this argument for review. The supreme court

recently held that the State’s objection to a downward departure sentence is properly

preserved when the prosecutor objects during the same proceeding in which the

defendant is sentenced and states the legal grounds for the objection. State v. Wiley,

, at *2 (Fla. Feb. 9, 2017). Here, the State properly preserved its

argument that the trial court erred in imposing a downward departure sentence. At

the sentencing hearing, the State argued that Lee was a danger to the community and

asked the court to impose a sentence of at least five years’ imprisonment. Further,

                                          30
the State argued in rebuttal to defense counsel’s argument for a departure sentence

that none of the mitigating factors presented by the defense warranted a departure.

Because the trial court was on notice of the reasons that the State objected to the trial

court’s imposition of a departure sentence and the State raises those same arguments

on appeal, this issue is preserved for appellate review.

                                      ii. Analysis

      Lee was convicted of traveling to meet a minor to engage in sexual conduct,

which is a second-degree felony punishable by up to fifteen years’ imprisonment.

§§ 775.082(3)(d), 847.0135(4)(a), Fla. Stat. (2013). Lee was also convicted of

unlawful use of a two-way communications device and using a computer to solicit

sexual conduct of a child, which are third-degree felonies punishable by up to five

years’ imprisonment. §§ 775.082(3)(e), 847.0135(3)(a), 934.215, Fla. Stat. (2013).

Although Lee’s Criminal Punishment Code scoresheet provided for a minimum

permissible sentence of forty-five months’ imprisonment, the trial court was free to

impose up to the statutory maximum on each count and to run the sentences

consecutively. §§ 921.00265(1), 921.16(1), Fla. Stat. (2013). Thus, Lee was facing

a total of twenty-five years’ imprisonment. Instead, he was sentenced to a total of

two years’ community control followed by thirteen years’ probation.

      The trial court relied on the statutory mitigating factor that Lee “requires

specialized treatment for a mental disorder that is unrelated to substance abuse or

                                           31
addiction, or for a physical disability, and the defendant is amenable to treatment.”

§ 921.0026(2)(d), Fla. Stat. (2013). The trial court also relied on the following non-

statutory mitigating factors: Lee’s ability to be rehabilitated, his contribution to the

community, his employment history, his family background, and his lack of criminal

history.

                                a. Statutory Mitigator

      Section 921.0026(2)(d) allows for a departure sentence when a defendant

proves by a preponderance of the evidence: (1) he has a mental disorder unrelated

to substance abuse or addiction or a physical disability; (2) his disorder or disability

requires specialized treatment; and (3) he is amenable to treatment.           State v.

Chubbuck, 

, 1171 (Fla. 2014). 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.




                                            32
                            b. Non-Statutory Mitigators

      The trial court also departed based on several non-statutory mitigating factors.

When the court bases a departure on a non-statutory factor, the factor must be

permissible and supported by competent, substantial evidence. State v. Bowman,

, 109 (Fla. 1st DCA 2013). To be permissible, the non-statutory

mitigator must be consistent with legislative sentencing policies.          

factors specifically listed by the legislature focus on the nature of the

crime, the conduct of the defendant or the mental capacity, condition, or attitude of

the defendant. Further, the first purpose of sentencing is to punish, not rehabilitate.

Finally, the legislative sentencing policy is to ensure that violent criminals are

incarcerated.” State v. Chestnut, 

, 313 (Fla. 5th DCA 1998).

      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.

                                          33
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.” State v. Lacey, 

, 780 (Fla. 4th DCA

1989).

      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. 

(“[W]e do not believe that the legislature intended that a defendant

from an exemplary family should be excused from serving the sentence

recommended for his offense.”). 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. See State

v. Chapman, 

, 908 (Fla. 2d DCA 2001); State v. Scaife, 

, 1036 (Fla. 5th DCA 1996). 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.

                                   III. Conclusion

      Because, viewed in the light most favorable to the jury verdict, the record

demonstrates that Lee’s convictions for traveling after solicitation, unlawful use of

                                         34
a two-way communications device, and solicitation occurred during separate

criminal episodes and involved distinct acts of solicitation, Lee’s convictions do not

violate double jeopardy. We, therefore, affirm Lee’s convictions. However, because

the trial court erred in imposing a downward departure sentence, we vacate Lee’s

sentences and remand for resentencing. On remand, the trial court may again

consider imposing a departure sentence if there are valid legal grounds to support

the departure sentence, and those legal grounds are supported by competent,

substantial evidence. Jackson v. State, 

(Fla. 2011).

AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERTS, C.J., WOLF, LEWIS, B.L. THOMAS, WETHERELL, RAY,
OSTERHAUS, KELSEY, WINOKUR, JAY, WINSOR, and M.K. THOMAS, JJ.,
concur.

WINOKUR, J., concurs in an opinion in which B.L. THOMAS and OSTERHAUS,
JJ., join.

BILBREY, J., concurs in part and dissents in part in an opinion in which MAKAR,
J., joins.

MAKAR, J., concurs in part and dissents in part with opinion.




                                         35
WINOKUR, J., concurring.

      I fully agree with the majority opinion, both in its approach to analyzing the

double-jeopardy issue as well as its conclusion here. However, I also see a more

fundamental issue with Lee’s position that the majority opinion does not address:

neither the protection against double jeopardy, nor the requirements of section

775.021(4), Florida Statutes, entitled Lee to pretrial dismissal of any charges based

upon a claim that multiple charges violated his protections against multiple

punishment. Lee’s motion to dismiss could have been denied on this basis alone.

      As the majority opinion notes, “[t]he guarantee against double jeopardy

consists of three separate constitutional protections: ‘It protects against a second

prosecution for the same offense after acquittal. It protects against a second

prosecution for the same offense after conviction. And it protects against multiple

punishments for the same offense.’” Lippman v. State, 

, 1064 (Fla.

1994) (citing North Carolina v. Pearce, 

, 717 (1969)). This case

involves the protection against “multiple punishments for the same offense.”

      In a case involving the protection against successive prosecution, the

defendant’s double-jeopardy rights are violated when the government files a

successive criminal charge. See Dell’Orfano v. State, 

, 36 (Fla. 1993)

(holding that “a double jeopardy violation will be presumed when the State attempts

a successive prosecution” under specific circumstances). As such, dismissal of the

                                         36
successive charge is the appropriate remedy for a successive-prosecution violation.

Fla. R. Crim. P. 3.190(b) (defenses of “former acquittal” and “former jeopardy” may

be made by motion to dismiss the indictment or information).

      However, in the multiple punishment context, it is the punishment that

implicates the protection against double jeopardy, not the criminal charges alone.

Simply charging and trying a defendant on multiple charges for the same crime does

not violate double jeopardy. For this reason, a pretrial dismissal of charges was not

an appropriate remedy in this case, regardless of whether the counts violated the

multiple-punishment aspect of double jeopardy.

      The United States Supreme Court made this rule clear in Ohio v. Johnson, 

(1984). Johnson was charged with murder, involuntary manslaughter,

aggravated robbery, and grand theft, and entered a guilty plea to involuntary

manslaughter and grand theft. Because these crimes were lesser-included offenses

of the remaining crimes (murder and robbery, respectively), the state court granted

the defendant’s motion to dismiss the remaining counts, on the ground that

continuing the prosecution would constitute a double-jeopardy violation. Johnson at

494-96. The Supreme Court disagreed, holding that “multiple punishments”

protections are not implicated merely because the defendant is put on trial for two

offenses when one offense is subsumed by the other. 

“While the

Double Jeopardy Clause may protect a defendant against cumulative punishments

                                         37
for convictions on the same offense, the Clause does not prohibit the State from

prosecuting respondent for such multiple offenses in a single prosecution.” 

applied the Johnson rule in State v. Sholl, 

(Fla. 1st DCA

2009). Sholl claimed that the charge of transmitting material harmful to a minor

violated the prohibition against double jeopardy because it contained the same

elements as a separate charge of lewd and lascivious exhibition. We ruled that the

defendant was not entitled to pretrial dismissal of any charges:

                    [T]he trial court should not have considered Sholl’s
             double jeopardy claim until sentencing. When an
             information contains two or more charges which amount
             to the same offense, “[d]ouble jeopardy concerns require
             only that the trial judge filter out multiple punishments at
             the end of the trial, not at the beginning.” Claps v. State,
             

, 134 (Fla. 2d DCA 2007). To this end,
             double jeopardy protections may not be extended to an
             earlier stage of the proceeding, such as the filing of the
             information or jury selection. 

trial court
             would be “usurp[ing] the State’s discretion to make
             strategic decisions about charging alleged criminal
             activity.” 

. The Sholl court concluded that the double jeopardy

argument was “premature and an improper basis for dismissal.” 

See also State v. Lewek, 

(Fla. 4th DCA 1995) (“Despite


      10
          “Multiple punishment” does not necessarily mean “multiple sentences.”
The Florida Supreme Court has ruled the “multiple punishment” prohibition is
implicated by “multiple convictions and punishments for the same offense.” Gordon
v. State, 

, 19 (Fla. 2001) (emphasis supplied), receded on other grounds
by Valdes v. State, 

(Fla. 2009).
                                           38
this clear rule saying that a defendant cannot be convicted of both manslaughter and

vehicular homicide for a single death, there is no such rule saying that he cannot

be charged with both crimes.”) (emphasis in original). 11

      Johnson and Sholl apply here. Lee moved to dismiss the information pursuant

to Florida Rule of Criminal Procedure 3.190, on essentially the same ground as the

defendant in Sholl. But even if some of the charges against Lee had been subsumed

by other charges, he would not have been entitled to dismissal of the charges. 12



      11
         Note that the issue here is not the allowable “unit of prosecution.” See State
v. Rubio, 

(Fla. 2007) (determining whether split-fee patient
brokering statute permitted a single charge based on the fee-splitting agreement, or
separate charges for every individual instance of fee-splitting); Allen v. State, 

118 (Fla. 4th DCA 2012) (determining whether the crime of transmission of
images harmful to minors permits only a single count for one transmission, or
separate counts for each image transmitted). A “unit of prosecution” issue addresses
whether the Legislature intended a single charge for criminal conduct, or multiple
charges for individual acts within the criminal conduct. This issue obviously entails
the propriety of the charges themselves, so pretrial dismissal of excess charges
would be the appropriate remedy. However, to the extent that excess counts violate
the multiple-punishment aspect of double jeopardy, relief for the double-jeopardy
violation is not available until multiple convictions are imposed.
      12
         Section 775.021(4) provides the statutory method for determining whether
multiple punishments violate double jeopardy. See e.g., State v. Shelley, 

914, 917-18 (Fla. 2015) (“[A]bsent an explicit statement of legislative intent to
authorize separate punishments for two crimes, application of the Blockburger[ v.
United States, 

, 

, 

(1932),] ‘same-elements’
test pursuant to section 775.021(4), Florida Statutes[,] is the sole method of
determining whether multiple punishments are double-jeopardy violations.”)
(quoting Gaber v. State, 

, 192 (Fla. 1996)). Moreover, section
775.021(4) speaks in terms of “conviction,” “adjudication of guilt,” and “sentence.”
Accordingly, like the constitutional protection against multiple punishments for the
                                         39
      This is not an academic distinction where the motion to dismiss is simply

“premature,” as we characterized it in Sholl. The dissenting opinions here conclude

that Lee made a prima facie showing of a double-jeopardy violation by alleging in

his motion to dismiss that some of his charges were subsumed by other charges,

which shifted the burden to the State to demonstrate that the three counts did not

violate double jeopardy. However, under Johnson and Sholl, the motion to dismiss

was improper, so it could not have shifted the burden to the State to disprove a

double-jeopardy violation. 13

      Judge Makar’s dissenting opinion argues that Lee was entitled to “have his

double jeopardy concerns addressed at some point,” even if he was not entitled to

pretrial dismissal, and that Sholl “doesn’t mean trial judges must put their heads in

the sand from the start until the end of trial, ignoring obvious double jeopardy

problems raised pre-trial.” Slip op. at 67. I support a policy against judicial head-in-

the-sand putting. But what Lee actually asked of the trial court was to “dismiss the



same crime, section 775.021(4) does not provide for pretrial dismissal of counts as
a remedy.
      13
         Some cases discussed in the other opinions seem to suggest that a defendant
must file a pretrial motion to dismiss charges in order to “preserve” a double-
jeopardy challenge based on multiple punishments. See Mahar v. State, 1

1123 (Fla. 2d DCA 2016); Fravel v. State, 

(Fla. 4th DCA 2016).
Because a defendant is not entitled to pretrial dismissal of charges in this
circumstance, a motion to dismiss is not necessary to preserve this issue. Neither of
these cases based its ruling on this alleged lack of preservation.
                                           40
charging instrument against him,” based on the claim that the information itself

violated his double-jeopardy rights. This remedy was foreclosed by Sholl, and the

trial court correctly denied it. I see no way that the trial court can “presume” a

double-jeopardy violation pretrial, shifting the burden to the State to disprove it,

unless the remedy for the State’s failure to disprove it is dismissal of charges. And

because pretrial dismissal of charges is not an appropriate remedy for a multiple

punishment violation, this proposal cannot work.

      In summary, a defendant claiming a multiple-punishment violation under

either the Double Jeopardy Clause or section 775.021(4) is not entitled to pretrial

dismissal of any counts of the information or indictment. With this observation, I

concur fully in the majority opinion.

B.L. THOMAS and OSTERHAUS, JJ., join.




                                         41
BILBREY, J., concurring in part and dissenting in part.

      Because the en banc majority opinion conflicts with State v. Shelley, 

914 (Fla. 2015) (Shelley II), and numerous cases from other Florida district

courts, on the application of the double jeopardy protections found in the United

States and Florida constitutions, I respectfully dissent from that part of the opinion

and write to explain my view. I agree with other holdings of the en banc majority

opinion as discussed below.

      Brian Mitchell Lee appeals his convictions following a jury trial, for traveling

to meet a minor after use of a computer service to seduce, solicit, or lure the minor

to engage in sex, in violation of section 847.0135(4)(a), Florida Statutes (2013)

(count I); unlawful use of a two-way communications device to facilitate the

commission of a felony, in violation of section 934.215, Florida Statutes (2013)

(count II); and use of a computer service to seduce, solicit, or lure a minor to engage

in sex, in violation of section 847.0135(3)(a), Florida Statutes (2013) (count III).

Lee argues that the elements of the unlawful use of the cell-phone (count II) and use

of the computer service to solicit (count III) offenses are subsumed by the elements

of the travel after solicitation offense (count I), and therefore the convictions and

sentences for all three offenses constitute double jeopardy. Because 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 was such that the State did not meet its burden —
                                           42
after being challenged by Lee — to show that the acts underlying Lee’s conviction

were separate, I would agree with Lee’s double jeopardy argument and reverse Lee’s

convictions and sentences for counts II and III in this case. I agree with the en banc

majority’s rejection of the other issues raised by Lee without comment.

      As to the State’s cross-appeal of the Lee’s downward departure sentences, I

agree with the en banc majority that the recent Florida Supreme Court decision State

v. Wiley, 

(Fla. 2017) (Wiley II), which quashed our earlier decision

in State v. Wiley, 

(Fla. 1st DCA 2015) (Wiley I), preserves for our

review the State’s objection to the downward departure sentences of Lee. I also

agree with the en banc majority that now we can consider the merits of the State’s

objection to the departure sentences, the trial court improperly departed and the case

should be remanded for resentencing, but only as to count I.

                           PROCEEDINGS AT TRIAL

      The State charged Lee with travel after solicitation in count I, “on or about

January 2, 2014.” Count II charged Lee with use of a two-way communications

device to facilitate commission of a felony, and count III charged him with use of a

computer service to seduce or solicit a child, both charges alleged to have occurred

“on one or more occasions between December 22, 2013, and January 1, 2014.” The

charges arose from Lee’s electronic correspondence with an Escambia County

Sheriff’s investigator posing online as a 14-year-old boy.          The investigator

                                         43
responded to Lee’s Internet advertisement on Craigslist for legal sexual activity

between adults, but the investigator on December 22, 2013, informed Lee that he

was communicating with an underage boy. Lee persisted with frequent messages

several times per day with increasingly graphic and explicit suggestions of sexual

activity, between December 22, 2013, and January 1, 2014. The only gap in

communications was during Christmas Eve and Christmas Day. None of the

messages dated January 2, 2014, contained any reference to sexual activity, but

January 2, 2014, was the date Lee traveled to meet the investigator’s fictitious

persona. Lee was arrested when he arrived at the agreed-upon meeting place.

Following a jury trial, Lee was convicted and sentenced on all three counts.

                              BURDEN OF PROOF

      I respectfully submit that the cases the en banc majority cites have applied an

oversimplified test by stating that the burden is on a defendant/appellant to show a

double jeopardy violation at the trial level. I think a number of federal cases more

thoroughly explain the burden. “In order to establish a double jeopardy claim, the

defendant must first present a prima facia claim that double jeopardy principles have

been violated. . . .   Once a defendant proffers sufficient proof to support a

nonfrivolous claim, the burden shifts to the government to show that double jeopardy

principles do not bar the proceeding.” U.S. v. Cruce, 

, 74 (5th Cir. 1994)

(citations omitted); see also United States v. Stricklin, 

(5th Cir.

                                         44
1979); United States v. Reed, 

(11th Cir. 1993).14

      Here, before trial, Lee moved to dismiss the soliciting and unlawful use of a

communication device charges based on double jeopardy. The trial court heard the

motion, but noted controlling case law from our court 15 and a case where the Second

District had certified conflict. 16 The motion was denied. By setting forth a prima

facia case for double jeopardy violation by showing that Counts II and III were

subsumed in Count I, and with the information showing that the dates overlapped, I

believe that the burden then shifted to the State to show no double jeopardy violation

was present. The State could easily have done that by amending the information to

charge separate offenses occurring on different dates or even after a temporal break

on the same date. See § 847.0135(3)(b), Fla. Stat. (“Each separate use of a computer


14
   “‘It is well settled that due process requires the state to prove every element of a
crime beyond a reasonable doubt.’” Warmington v. State, 

, 652 (Fla.
2014) (quoting Jackson v. State, 

, 188 (Fla. 1991)). It is the State’s
burden to show a defendant’s Fourth Amendment right was not violated in a
warrantless seizure. Dunaway v. New York, 

(1979). It is the State’s
burden to show a defendant’s Fifth Amendment right against self-incrimination was
not violated during custodial interrogation. Miranda v. Arizona, 

(1966). Why should the State’s burden be different in dealing with the double
jeopardy clause in the Fifth Amendment and article I, section 9, of the Florida
Constitution?
15
  The case the trial court was presumably referring to, State v. Murphy, 

(Fla. 1st DCA 2013), was disapproved by the Florida Supreme Court in State v.
Shelley, 

914 (Fla. 2015) (Shelley II).
16
  This case was presumably Shelley v. State, 

(Fla. 2d DCA 2014)
(Shelley I) which was approved in Shelley II.
                                       45
online service, Internet service, local bulletin board service, or any other device

capable of electronic data storage or transmission wherein an offense described in

this section is committed may be charged as a separate offense.”) (emphasis added).

      The court in Griffith v. State, 

(Fla. 5th DCA 2017),

recognized that a different analysis applies when a defendant raises a double

jeopardy challenge for the first time on appeal. In that situation the double jeopardy

violation must be apparent from the face of the record. 

(citing Novaton

v. State, 

(Fla. 1994)). It is in the situation where a double jeopardy

violation is first raised on appeal that the burden is on the defendant. 

(citing Edwards v. State, 

(Fla. 1st DCA 2014)). As

discussed below, Lee raised the double jeopardy violations before the trial court and

maintained his innocence throughout the case; therefore, I believe it was the State’s

burden to show no double jeopardy violation occurred. I do not believe the State

met this burden.17


17
  Sprouse v. State, 

(Fla. 1st DCA 2016), cited by the en banc majority
as to the burden, is distinguishable because sexual battery and lewd and lascivious
battery are separate and distinct criminal acts which require different elements of
proof. See State v. Drawdy, 

(Fla. 2014). Unlike those crimes, as
discussed below, the three crimes Lee was charged with are the “same crime” for
double jeopardy purposes. The same analysis applies to Williams v. State, 

931 (Fla. 1st DCA 2012), also cited by the en banc majority, where the attempted
premediated murder and attempted felony murder counts required proof of different
elements. See § 775.021(4)(a), Fla. Stat. In Capron v. State, 

(Fla.
5th DCA 2007), cited by the en banc majority, double jeopardy was reviewed for
fundamental error since it was not raised at the trial level. In Koon v. State, 

                              DOUBLE JEOPARDY

      As noted by the en banc majority, the Fifth Amendment protection against

double jeopardy includes the protection claimed here, the protection against multiple

punishments for the same offense. See North Carolina v. Pearce, 

, 717

(1969), overruled on other grounds by Alabama v. Smith, 

(1989). As

explained by the Florida Supreme Court:

      The most familiar concept of the term “double jeopardy” is that the
      Constitution prohibits subjecting a person to multiple prosecutions,
      convictions, and punishments for the same criminal offense. The
      constitutional protection against double jeopardy is found in both
      article I, section 9, of the Florida Constitution and the Fifth Amendment
      to the United States Constitution, which contain double jeopardy
      clauses. Despite this constitutional protection, there is no constitutional
      prohibition against multiple punishments for different offenses arising
      out of the same criminal transaction as long as the Legislature intends
      to authorize separate punishments.

Valdes v. State, 

, 1069 (Fla. 2009) (footnote omitted). Accordingly, a

starting point for a double jeopardy determination is whether the multiple



2d 201, 203 (Fla. 1985), cited in Capron, it was held to be the defendant’s burden to
show “that the state authorities had little or no independent volition in state court
proceedings” when state and federal prosecutions for the same crime were being
undertaken pursuant to the dual sovereign exception to double jeopardy. See
Bartkus v. Illinois, 

(1959). I would read Koon as being consistent with
the above federal cases that a defendant must make out a prima facia case, at which
time the burden falls on the State to show no double jeopardy violation. In Koon,
the defendant did not make a case for application of the exception to the dual
sovereign doctrine. Here, Lee made a prima facia case for a double jeopardy
violation by showing he was charged with the same crimes as a matter of law for the
same offense by one sovereign, the State of Florida.
                                          47
convictions are for “the same criminal offense.” 18

      The test to determine if two convictions are for the “same offense” was set out

in Blockburger v. United States, 

(1932). The “Blockburger test” is

codified in Florida in section 775.021(4), Florida Statutes, which provides:

             (4)(a) Whoever, in the course of one criminal transaction or
      episode, commits an act or acts which constitute one or more separate
      criminal offenses, upon conviction and adjudication of guilt, shall be
      sentenced separately for each criminal offense; . . . For the purposes of
      this subsection, offenses are separate if each offense requires proof of
      an element that the other does not, without regard to the accusatory
      pleading or the proof adduced at trial.
             (b) The intent of the Legislature is to convict and sentence for
      each criminal offense committed in the course of one criminal episode
      or transaction and not to allow the principle of lenity as set forth in
      subsection (1) to determine legislative intent. Exceptions to this rule of
      construction are:
             1. Offenses which require identical elements of proof.
             2. Offenses which are degrees of the same offense as provided
      by statute.
             3. Offenses which are lesser offenses the statutory elements of
      which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2013).

      The offenses proscribed by sections 847.0135(4) and 934.215, Florida

Statutes (counts I and II in this case, respectively), have been deemed the same for

purposes of double jeopardy analysis because “the unlawful use of a two-way


18
  The en banc majority starts its double jeopardy analysis as a different point, but I
agree that the same three-part test applies. See Partch v. State, 

(Fla.
1st DCA 2010). The Court in Shelley II started, like I do here, with “same criminal
offense” analysis. 

at 917 (quoting Valdes v. State, 

, 1069
(Fla. 2009)).
                                          48
communications device does not contain any elements that are distinct from the

offense of traveling to meet a minor.” Hamilton v. State, 

, 1279

(Fla. 1st DCA 2015). Likewise, in Mizner v. State, 

, 399 (Fla. 2d

DCA 2014), dual convictions for unlawful use and traveling to meet a minor based

on the same acts were reversed because “the proof of the unlawful use of a two-way

communications device was subsumed within the proof of the solicitation and

traveling offenses in this case.”        Other recent cases have followed in this

determination that violations of section 847.0135(4) (traveling after solicitation) and

934.215 (unlawful use of communications device) are not separate offenses when

the same acts are involved because proof of unlawful use is subsumed within the

proof of the travel. See Holt v. State, 

(Fla. 5th DCA 2015); Holubek

v. State, 

(Fla. 5th DCA 2015).

      Likewise, the Florida Supreme Court has found that the offenses of use of a

computer service to solicit a minor or supposed minor, and traveling after such

solicitation, are “the same” for purposes of double jeopardy analysis because “the

statutory elements of solicitation are entirely subsumed by the statutory elements of

traveling after solicitation.” Shelley II, 

at 919.19 In Shelley II, the Florida


19
  The en banc majority discusses Shelley II and its mention of the “same conduct.”
(Maj. Op. at 14). The majority equates the “same conduct” in Shelley II with a single
act. But I read the “same conduct” discussed in Shelley II to mean the “same
criminal episode or transaction,” a separate consideration in the three-part double
jeopardy analysis. See 

. A “same criminal episode or
                                         49
Supreme Court ruled that double jeopardy was violated by dual convictions for

solicitation (section 847.0135(3)(a)) and traveling to meet the minor (section

847.0135(4)), where the conduct “constitutes both solicitation . . . and traveling after

solicitation.” 

at 919. The Florida Supreme Court held that Shelley’s dual

conviction violated the Blockburger test in section 775.021(4) because “the statutory

elements of solicitation are entirely subsumed by the statutory elements of traveling

after solicitation.” 

ACTS TO AVOID DOUBLE JEOPARDY

       In State v. Meshell, 

(Fla. 2009), dual convictions for lewd and

lascivious battery were affirmed where the acts occurred within seconds of each

other, but the information alleged different anatomical combinations. As the Florida

Supreme Court in Meshell observed, “Florida courts have focused on whether the

acts forming the basis of the charges are ‘distinct.’” 

“Distinct acts” are

“acts of a separate character and type requiring different elements of proof.” 

see also Partch v. State, 

(Fla. 1st DCA 2010). While the offenses

described by section 847.0135(3) and section 934.15 are subsumed within the proof

of the offense described by section 847.0135(4), the case law discusses violations of

those statutes which are alleged to have occurred on the same day or span of days.


transaction” or the “same conduct” may encompass multiple single acts. I
respectfully submit that the en banc majority misapplies Shelley II by reading its
“same conduct” discussion to only be a single act.
                                        50
Thus, the actions supporting the charges have been considered the same acts,

committed “in the course of one criminal episode or transaction.” See § 775.021(4).

      For example, in Mizner, the State “charged each of the offenses over the same

time period, from November 1, 2011, to November 4, 

.

The Mizner court rejected the State’s argument that the multiple uses of

communications devices prevented that offense from being subsumed into the single

charge for travel after solicitation. 

the cell phone uses occurred “over three to four days in May of

2012” and the last element of the travel after solicitation occurred on May 4, 

. Even though the acts resulting in the charges “spanned more

than one day,” the court in Hamilton found that the State had “charged them as

occurring during a single criminal episode” and thus vacated the conviction for the

violation of section 934.15. 

      The actions supporting the dual charges in Holt were both alleged to have

occurred “on or about March 14, 

. Because both the

charging document and the jury verdict form lacked any clear language to show that

the charges were based on two distinct acts, “the State charged the offenses as

occurring during a single criminal episode, and we may not assume they were


20
  I believe the en banc majority has receded from Hamilton v. State, 

, (Fla. 1st DCA 2015), on this point. I respectfully submit that we should
continue to comply with our holding in Hamilton.
                                       51
predicated on different acts.” 

see also 

(“The

ambiguous wording of the charging information and the jury verdict makes it

impossible for this court to know if the jury convicted appellant for one act of sexual

battery or two distinct acts” when the evidence at trial showed overlapping acts).21

Similarly, in Holubek, the unlawful use of a two-way communications device and

the travel to meet the “minor” arose out of the same criminal episode between “the

evening of March 14, 2013, and early morning hours of March 15, 2013.” 

at 1115. See also Meythaler v. State, 

(Fla. 2d DCA 2015) (noting

that State could have avoided the double jeopardy issue by amending the information

to allege additional communications on different dates); Anderson v. State, 1

1120, 1121 (Fla. 1st DCA 2016) (noting that “where the State charges the

defendant with multiple counts of solicitation and also charges the defendant with

traveling, so long as different conduct is alleged with regard to the solicitation and

traveling charges, dual convictions will not violate the defendant’s double jeopardy


21
   The en banc majority has “clarified” the language in Partch, which the court in
Holt v. State, 

(Fla. 5th DCA 2015), as well as other courts, applied
as I do here. I think it is fairer to say that the en banc majority recedes from Partch.
In Partch, we previously held that where “neither the charging information nor the
jury verdict form included language clearly predicating the disputed charges on two
distinct sex acts,” it was “impossible for this court to know if the jury convicted
appellant for one act of sexual battery or two distinct acts” when the evidence
produced at trial showed overlapping acts. 

-62.
Accordingly, in Partch, the “distinct acts exception” to the double jeopardy rule did
not apply and the conviction was reversed. 

I would not recede from
Partch and would instead apply its plain language, as other courts have done.
                                             52
rights”).

      In Graham v. State, 

, 143 (Fla. 1st DCA 2015), aff’d, 

135 (Fla. 2016), we affirmed a conviction over a double jeopardy challenge where

“the information and the jury verdict demonstrate that the charges were predicated

on two distinct acts.” While we do not know what the information alleged at trial

in Shelley II, we do know that the solicitations occurred “[o]ver the course of several

days.” 

at 916.

      In Manetta v. State, 

, 562 (Fla. 3d DCA 2012), the court cited

to Partch and found a double jeopardy violation where two counts of lewd and

lascivious molestation were identical and “thus did not so much as allege separate

acts which might form the basis of separate judgments. . . .” See also Gonzalez v.

Jones, 14-20645-CIV, 

, at *32 (S.D. Fla. Jan. 22, 2015), report

and recommendation adopted, 14-20645-CIV, 

(S.D. Fla. Sept.

2, 2015) (citing to Manetta and Partch in holding that identical counts in the

information alleging the “same offense” and not alleging “separate acts” resulted in

a double jeopardy violation).

      The unlawful use of a computer to solicit conviction was reversed in Batchelor

v. State, 

(Fla. 2d DCA 2016), due to the possibility that the

additional conviction for traveling after solicitation was based on the same acts. The

State had charged that both offenses occurred on or between June 10, 2013, and June

                                          53
13, 2010, but the court in Batchelor held that it was “not at liberty to infer” from the

record that the State charged the defendant “with two distinct, chargeable offenses,

separated in space or time.” 

Discussing the same argument as the State

makes here, the court in Batchelor stated:

      Finally, the State argues that it is not possible to determine whether the
      defendant's use of his two-way communications device was the same
      as his use of a computer online service or internet service without
      looking at the underlying facts of the case. The State is on to something
      here, but its analysis ignores the allegations of the charging document
      that it filed against Mr. Batchelor. One can imagine a scenario where
      convictions for both traveling to meet a minor and the unlawful use of
      a two-way communications device could be sustained. But such a
      scenario would require a charging document—unlike the one filed in
      this case—that distinguished the two acts as occurring separately, and
      that facts were adduced at trial to prove that the offenses were indeed
      committed as separate and distinct acts.

in the charging document required reversal in Stapler v. State,

1

162 (Fla. 5th DCA 2016), as well. There, dual convictions for solicitation

and travel after solicitation were challenged on double jeopardy grounds. 

64. Acknowledging that sections 847.0135(3) and 847.0135(4) contain the same

elements, “the only issue in this case is whether Stapler can be convicted of multiple

solicitations despite being charged with single counts of solicitation and traveling

based on conduct occurring over the same specified period of time.” 

The

State in Stapler argued that the evidence established multiple violations sufficient to

justify convictions under both sections, but the court declined “to deny a double-
                                          54
jeopardy claim ‘based on uncharged conduct simply because it could have been

charged.’” 

(quoting State v. Shelley, 

, 1141-42 (Fla. 2d

DCA 2014) (Shelley I)).

      In Mahar v. State, 1

1123 (Fla. 2d DCA 2016), the court reversed

dual convictions for solicitation and traveling after solicitation as double jeopardy.

The communications occurred a day prior to travel. “Like Shelley, the State here

charged Mr. Mahar with one count of solicitation based on those multiday

communications and made no effort to charge the conduct in multiple, separate

counts of solicitation.” 

(citing 

).

      In Thomas v. State, 

, 36 (Fla. 2d DCA 2016), the defendant was

charged with soliciting “on or about March 19, 2013, through March 22, 2013” and

traveling to meet a minor on March 22, 2013.            Citing to Shelley II, Mahar,

and Meythaler, the Thomas court found a double jeopardy 

.

      Accordingly, in order to survive a double jeopardy challenge when a

conviction for travel after solicitation has been obtained, convictions for the lesser

felonies of unlawful use and solicitation must be based on conduct that is not “in the

course of one criminal transaction or episode,” as contemplated by section

775.021(4). See Hartley v. State, 

(Fla. 4th DCA 2014) (solicitation

acts charged as separate counts for each date; travel after solicitation charged on only

                                          55
one of the dates and sufficient solicitation occurred that date to support travel

offense). 22

                     DISTINGUISHING CERTAIN CASES

       The en banc majority relies on certain cases which I believe are

distinguishable or have no application here. There are cases which have held that

although the information did not charge two separate acts, the proof at trial was clear

that distinct acts were involved and therefore double jeopardy was not implicated.23

In our recent case McCarter v. State, 

(Fla. 1st DCA 2016), we found

no double jeopardy violation where clearly distinct acts of solicitation were proven.

In McCarter, the proof at trial of the soliciting a minor charge consisted of multiple

requests via social media for nude pictures of a minor while the solicitation in the



22
  It is worth noting that in considering the double jeopardy clause protection against
being twice put to trial for the same offense, the United States Supreme Court has
looked to the charging document (the indictment in federal court) in considering
whether to grant relief. Abney v. United States, 

(1977).
23
   It would arguably be simpler to rely solely on the specific acts alleged in the
information without regard to what was proven at trial. This appears to be the
approach taken by other districts. See Honaker v. State, 

(Fla. 5th
DCA 2016); Batchelor v. State, 

(Fla. 2d DCA 2016); Mizner v.
State, 

, 399 (Fla. 2d DCA 2014). But such an approach is precluded
by McCarter v. State, 

(Fla. 1st DCA 2016). In McCarter, the proof
at trial for the soliciting count consisted of multiple requests via social media for
nude pictures of a minor while the solicitation in the traveling after solicitation count
consisted of messages via smart phone to arrange in-person meetings with the minor.
Even if we did not want to overrule McCarter en banc, it could be reconciled with
the cases from the other districts by the approach I propose here to avoid conflict.
                                           56
traveling after solicitation charge consisted of messages via smart phone to arrange

in-person meetings for sexual activity with the minor. 

McCarter is

consistent with cases from other courts where double jeopardy was not violated so

long as the evidence at trial clearly distinguished between separate offenses, as

compared to this case, where the evidence did not.

      In Fravel v. State, 

, 972 (Fla. 4th DCA 2016), convictions for

two counts of fraudulent use of personal identification were affirmed over a double

jeopardy challenge where the evidence at trial showed two different banks and

therefore “clearly distinguished between two separate counts.” In Nicholson v.

State, 

(Fla. 4th DCA 2000), the convictions for two counts of

throwing deadly missile were affirmed over a double jeopardy challenge based on

the proof at trial of two bricks thrown into two windows. In Nicholson, “the

evidence at trial clearly distinguished between the two separate offenses.” 

In Vizcon v. State, 

, 5-6 (Fla. 3d DCA 2000), convictions for 29

counts of money laundering were affirmed over a double jeopardy challenge with a

citation to Nicholson’s requirement that the evidence at trial clearly distinguish

separate offenses to avoid double jeopardy. If we did not want to conflict with these

cases, we could still comply with the prohibition against double jeopardy by finding

no violation where, unlike here, the evidence a trial “clearly distinguished” between

separate acts.

                                         57
              APPLICATION OF DOUBLE JEOPARDY TO LEE

      Here, the State alleged that the unlawful use and solicitation acts in counts II

and III occurred over a twelve-day span, and the travel after solicitation in count I

occurred only on day thirteen, immediately following the twelve-day span. The

travel after solicitation offense requires proof of prior seduction, solicitation, luring,

or enticement, which culminated in the travel. § 847.0135(4)(a), Fla. Stat. (2013).

In this case, none of the text messages dated January 2, 2014, the day the travel

occurred, were sexually explicit and none contained content constituting seduction

or solicitation. Accordingly, the “after solicitation” element of the travel offense in

count I must have been based on the texts leading up to January 2, the date the final

element of the offense occurred.

      In this case, although the proof at trial of text messages over several days

established multiple uses of Lee’s cell phone to facilitate a felony and also

established multiple solicitations, I believe that it is incorrect to presume that Lee

was not convicted of the same act in all three counts. 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. Therefore I would find that the




                                           58
multiple convictions and sentences violate double jeopardy. 24

      In conclusion as to the double jeopardy issue, the convictions and sentences

for unlawful use of a two-way communications device (count II) and for use of a

computer service to seduce, solicit, or lure a person believed to be a child (count III)

should be reversed while the conviction and sentence for traveling to meet a minor

after using of computer to seduce or solicit a minor (count I) should be

affirmed. See Shelley II, 

at 919-20 (holding that when dual convictions

violate double jeopardy, the lesser offense should be reversed and the greater offense

affirmed). I respectfully dissent from the en banc majority decision to the extent it

affirms Lee’s conviction on all three counts in spite of what I believe are double

jeopardy violations.

               STATE’S DOWNWARD DEPARTURE APPEAL

      At the time the panel decision issued, we were bound by our earlier decision



24
   The en banc majority discusses Hammel v. State, 

, 635 (Fla. 2d
DCA 2006), for the contention that each break allowing a defendant to “pause,
reflect, and form a new criminal intent” can be charged separately. I agree that no
double jeopardy violation occurs where the information charges separate acts
following temporal breaks like in Hammel. Here, however, Lee was not charged
with separate acts but with overlapping acts, such that we cannot be clear that the
jury did not convict him of the same act. Duke v. State, 

(Fla. 2d
DCA 1984), and the related cases discussed by the en banc majority concerning
temporal breaks are consistent with State v. Meshell, 

(Fla. 2009), where
dual convictions for lewd and lascivious battery were affirmed where the acts
occurred within seconds of each other, but the information alleged different
anatomical combinations. No such allegations were present in the information here.
                                         59
in Wiley I that required the State to object to a downward departure sentence after

the sentence was imposed for the downward departure to be preserved for 

. No objection was made by the State after the trial court granted

Lee downward departure sentences, so the panel found that the issue was not

preserved for appellate review. Subsequent to the panel decision, while this case

was being considered en banc, the Florida Supreme Court issued Wiley II which

quashed our decision in Wiley I. Wiley 

. Wiley II holds that

the State’s objection to a downward departure sentence is preserved for appellate

review if the State objects during the sentencing process. 

State

objected during the sentencing process to the trial court imposing the downward

departure sentences on Lee.

      I agree with the en banc majority that the trial court used a statutory mitigator

without competent substantial evidence to support the mitigator and used

impermissible non-statutory mitigators in granting the downward departure. I

therefore agree with the decision of the en banc majority to remand for resentencing

pursuant to Jackson v. State, 

(Fla. 2011). However, because of the

double jeopardy violation, I would vacate the sentences for counts II and III, and

would have the resentencing be only as to count I.

MAKAR, J., joins.




                                         60
MAKAR, J. concurring in part, dissenting in part.

         I concur in Judge Bilbrey’s opinion, but write separately to highlight that the

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. Adequate adjudicative tools exist to protect

against the type of double jeopardy problem presented, but they were not used in this

case, making it impossible to conclude that a constitutional violation did not occur.

Because a double jeopardy violation is universally deemed to fundamentally offend

state and federal constitutions, we have an “unrenunciable judicial duty” to remedy

such a violation even if not raised or preserved by the parties. Hendricks v. State, 

, 828 (Fla. 1st DCA 2010); Bishop v. State, 

, 832 (Fla. 1st

DCA 2008).

         Turning to the information, it charged Lee with three counts: (1) traveling to

meet a minor to engage in sexual contact after using a computer to solicit the illegal

act (“traveling”); 25 (2) unlawfully using a two-way communications device (a

cellphone) to facilitate commission of a felony (“communications”); 26 and (3) using



25
     § 847.0135(4)(a), Fla. Stat. (2013).
26
     § 934.215, Fla. Stat. (2013).

                                            61
a computer to facilitate or solicit sexual conduct with a person believed to be a child

(“solicitation”).27

         On the face of the information, a potential double jeopardy problem is

immediately apparent, as Lee pointed out below: the solicitation charged in Count 3

is subsumed in the traveling charge in Count 1. See State v. Shelley, 

914,

919 (Fla. 2015) (“[B]ecause the statutory elements of solicitation are entirely

subsumed by the statutory elements of traveling after solicitation, the offenses are

the same” for purposes of the double jeopardy test in section 775.021(4), Florida

Statutes.”). This problem is exacerbated because Count 3 of the information charged

that Lee used a computer to engage in solicitations “on one or more occasions” over

ten days. (Emphasis added). As charged, the jury need only find one solicitation to

find Lee guilty as to Count 3. But to also prove the traveling violation in Count 1,

an additional solicitation violation—separate and distinct from the one upon which

the jury found a violation in Count 3—must be shown to avoid a double jeopardy

violation. Stated differently, to uphold concurrent convictions on Counts 1 and 3 as

alleged in the information against Lee, there must be a basis in the record for

concluding that the jury was told and understood that it must actually find at least

two separate and distinct solicitation violations. Absent an amended information or



27
     § 847.0135(3)(a), Fla. Stat. (2013).

                                            62
some means of channeling their decision-making, the jury was without guidance as

to whether they could use just one solicitation violation as the basis for guilt as to

Counts 1 and 3; they were adrift without direction.

      The information’s shortcomings led Lee to ask for dismissal on double

jeopardy grounds, but the trial judge summarily denied the request, finding that

“each offense contains an element that the other does not,” which is erroneous in

light of Shelley. The case proceeded to trial, the jury was given only standard

criminal instructions, and a basic verdict form was used asking whether Lee was

guilty as to each of the three counts “as charged in the information.”

      Focusing, as we must, on how the jury was instructed and what it did, a glaring

deficiency is obvious. At no point was the jury told it had to find at least two separate

and distinct solicitation violations to hold Lee accountable on both the traveling

count and the solicitation count. See Partch v. State, 

, 761-62 (Fla. 1st

DCA 2010) (“[N]either the charging information nor the jury verdict form included

language clearly predicating the disputed charges on two distinct sex acts.”). For all

we know, jury deliberations ended when they found a solicitation violation, marked

“guilty” on the verdict form as to Count 3, and used that same violation to mark

“guilty” as to the traveling charge in Count 1. Nothing in the information, jury

instructions, or verdict form provides any objective basis for excluding this

unconstitutional result; no amount of rumination or hypothesizing changes this

                                           63
conclusion. As we said in Partch, the “ambiguous wording of the charging

information and the jury verdict makes it impossible for this court to know if the jury

convicted appellant for one act of sexual battery or two distinct acts.” 

The

same impossibility exists here.

      Even if evidence supporting multiple solicitations can be gleaned from the

appellate record, the jury was empowered to find only one solicitation violation as

charged in the information; it was not told that it had to find an additional one to

avoid a double jeopardy violation as to the traveling violation. For this reason, the

en banc court’s conclusion that Lee’s convictions on the three counts were based on

“separate and distinct acts” that “were not based on the same conduct” is unverifiable

and thereby speculative on this record. The State did not charge separate and distinct

counts of solicitation, the jury instructions were silent on the topic, and the verdict

form provides no clue as to whether the jury found separate and distinct acts of

solicitation as to Counts 1 and 3. No objective basis establishes that the jury found a

solicitation violation other than the one, and only one, that underlies the violation it

found as to Count 3; it didn’t know any better, given the problematic information

and the lack of jury instructions/verdict form to guide its decision-making on this

point. End result: we can’t unscramble the egg in this case; Lee was denied the ability

to protect against a double jeopardy violation and the State can’t rule out that his

constitutional right wasn’t infringed.

                                          64
      It bears emphasis that a double jeopardy violation is an error of fundamental

proportion, so much so that it can be raised on appeal for the first time even if the

issue was not raised, developed, or preserved. See Lippman v. State, 

, 1064 (Fla. 1994) (“The prohibition against double jeopardy is

‘fundamental.’”) (quoting Benton v. Maryland, 

, 795-96 (1969) (“The

fundamental nature of the guarantee against double jeopardy can hardly be

doubted.”)). Indeed, a potential double jeopardy violation can be addressed sua

sponte on appeal. Honaker v. State, 

, 1070 (Fla. 5th DCA 2016) (An

appellate court “may sua sponte address fundamental error apparent on the face of

the record” in a pro se, post-Shelley, traveling/solicitation case.). When presented

with an obvious constitutional problem, our obligation is to determine whether a

violation exists, even if Lee had never raised the double jeopardy issue at trial or on

appeal. 

           (“Despite Appellant's failure to argue

fundamental error, we consider whether the purported error is of a fundamental

nature because it is an appellate court's ‘unrenunciable judicial duty’ to correct

fundamental error even if it is not raised.”). That Lee agreed to the jury instructions

and verdict form (or filed a motion to dismiss that was denied) is immaterial here

under double jeopardy fundamental error analysis, particularly so when his attempt

to raise the constitutional issue was summarily dismissed.




                                          65
      Here, Lee’s counsel presciently pointed out the potential for a double jeopardy

violation, but erroneously was denied relief at any point on the mistaken view that

solicitation is not subsumed in a traveling violation. Under Shelley, that view is

wrong. Because Lee established the potential for a significant double jeopardy

violation that was dismissed and thereby unaddressed below, the most reasonable

approach in this case is to presume such a violation unless the State can establish the

contrary, much like was done in Dell’Orfano v. State, 

, 36 (Fla. 1993),

which placed the burden on the State in a double jeopardy case to overcome the

presumption where the subsequent prosecution is based on the same defendant,

crime, time, and victim. 

“wherever there is doubt that the State has

met its burden, the trial court must find a double jeopardy bar if it also concludes

that the State either was aware of or could have discovered the newly charged

offenses through due diligence in the first prosecution” in a subsequent prosecution

case). As in Dell’Orfano, the existence of a potential (if not obvious, in this case)

double jeopardy problem justifies the State having to prove the absence of a

violation. After all, Lee had no way to do so in the trial court, which dismissed his

double jeopardy concerns at the outset. Whether or not he was entitled to dismissal

pre-trial doesn’t matter because he was entitled to have his double jeopardy claim




                                          66
addressed at some point, 28 which did not occur. Lee thereby has met his burden of

demonstrating error of constitutional significance, shifting the burden to State to

demonstrate no double jeopardy violation occurred.

      In this regard, our review in this case is not one of evidentiary sufficiency as

to whether five solicitations could have been established at trial; if the State had

charged five counts of only solicitation (without a traveling charge), it is likely this

record would support upholding convictions on those five counts. But that is not

what this case is about. Instead, it is about constitutional sufficiency, that being

whether the charges in the information and the jury instructions/verdict form give us

any basis to conclude that the double jeopardy violation about which Lee complained

does not exist. Because that can’t be done on this record, vacation of the solicitation

count is the appropriate remedy under these unique circumstances post-Shelley.




28
   See State v. Sholl, 

(Fla. 1st DCA 2009) (finding “[w]hen an
information contains two or more charges which amount to the same offense,
‘[d]ouble jeopardy concerns require only that the trial judge filter out multiple
punishments at the end of the trial, not at the beginning’”) (citation omitted). Sholl
doesn’t mean trial judges must put their heads in the sand from the start until the end
of trial, ignoring obvious double jeopardy problems raised pre-trial in a motion to
dismiss or otherwise. Preventing a multi-vehicle pileup is far better than
disentangling its wreckage. In addition, a motion to dismiss in this context is a well-
accepted practice, so much so that the State views it as necessary to preserve a double
jeopardy issue, see, e.g, Fravel v. State, 

, 971 (Fla. 4th DCA 2016);
it is not an “improper” motion to be ignored. After Shelley, trial judges should
consider such motions as invitations to avoid constitutional error, not as “improper”
ones to be automatically denied.
                                           67
      As a final note, the double jeopardy problem in this case has straightforward

solutions that impose no significant burden on the State, which has tremendous

strategic leeway in deciding which charges to assert in this class of cases. One is for

an information to set forth charges in a way that lessens or avoids a potential double

jeopardy violation; we don’t want a jury that finds only one solicitation to convict a

defendant of two crimes because an information is unclear. The Legislature has

given the State much authority as to the types of crimes charged in this case,

specifically saying that multiple counts of solicitation are permissible. 29 Carefully

crafted counts—that don’t overlap in violation of Shelley—are workable in most, if

not all, cases. Indeed, this approach was suggested in McCarthy v. State, 

, 1059 (Fla. 1st DCA 2016), which involved a double jeopardy violation arising

from “a single count of unlawful use of a computer service and a single count of

traveling to meet a minor; both of these charges were based on the same conduct.”

In a footnote, the panel said:

      We note that the outcome of this case would have been different if the
      State had charged McCarthy with multiple counts of solicitation and
      traveling based on different conduct. See Meythaler v. State, 

, 919 (Fla. 2d DCA 2015) (vacating conviction and sentence for
      solicitation where information alleged only single counts of solicitation
      and traveling based on the same conduct, but noting that if the State had

29
   § 847.0135(3)(b), Fla. Stat. (“Each separate use of a computer online service,
Internet service, local bulletin board service, or any other device capable of
electronic data storage or transmission wherein an offense described in this section
is committed may be charged as a separate offense.”).

                                          68
      amended the information to allege additional communications that
      occurred, these counts would have survived).

n.1. By extension, the outcome of Lee’s case would have been different

had the State charged Lee “with multiple counts of solicitation and traveling based

on different conduct.” 

count each of traveling and solicitation,

without specifying they’re based on different conduct, is a recipe for double jeopardy

disaster.

      The other solution is to use a jury instruction and/or verdict form that tells

jurors they need to find separate and distinct acts of solicitation to support both a

traveling violation and a solicitation violation. 30 A jury instruction saying that “a

conviction on a traveling count cannot be based on the same act of solicitation used

to convict the defendant on the solicitation count” or the like would guard against a

constitutional violation, even if one or multiple counts of solicitation are alleged.

Here, neither the information, the jury instructions, nor the verdict form constrained

the jurors from wading into an insoluble double jeopardy problem, which appeared

on the face of the information and thereafter was not addressed.



30
   This recommendation was made years ago in Judge Cowart’s concurrence in
Barnhill v. State, 

, 162 (Fla. 5th DCA 1985), where he said: “Often
violations of double jeopardy are discernible as a matter of law, but when the issue
of double jeopardy turns on a factual issue, as in this case, appropriate jury
instructions and verdicts should be given the jury to permit it to make the necessary
factual distinctions to effectuate the double jeopardy constitutional prohibition.”

                                         69
                                        ***

      Double jeopardy jurisprudence is among the most confusing and complex,31

generating challenging conundrums and resulting often in widely divergent court

decisions analyzing similar issues; this phenomenon continues post-Shelley, as

Florida courts navigate new and confounding questions. That said, this case presents

the simple question of whether Lee, having brought a meritorious double jeopardy

problem to the trial court’s attention, is entitled to relief when our review of the

record cannot possibly exclude the precise violation about which he complained.

Because we are in the business of protecting constitutional rights, for even those who

commit repugnant acts, the question answers itself.




31
   Albernaz v. United States, 

, 343 (1981) (“[T]he decisional law in the
area is a veritable Sargasso Sea which could not fail to challenge the most intrepid
judicial navigator.”). Bounded by four different ocean currents that form a massive
clockwise-circulating sea vortex, the Sargasso Sea is a unique region in the
North Atlantic Ocean known for its seaweed and clear blue water, depicted “in
literature and media as an area of mystery,” most notably in Jules Verne’s 20,000
Leagues       Under      the     Sea.    See      Sargasso       Sea,    Wikipedia,
https://en.wikipedia.org/wiki/Sargasso_Sea/ (last visited April 27, 2017).

                                         70