final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Jackie L.
Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant
Attorney General, Tallahassee, for Appellee.
ON REMAND FROM THE FLORIDA SUPREME COURT
fall of 2011, Nathan Dygart exchanged messages with someone
he thought was a fourteen-year-old girl named Amber. The two
discussed sports, television, and parents. They also
discussed sex, Dygart becoming increasingly explicit. The
discussions escalated, and Dygart eventually drove to
Tallahassee's Killearn subdivision, where he planned to
have sex with fourteen-year-old "Amber."
arrived in Killearn, Dygart learned there was no
"Amber"; he had been corresponding with a police
detective involved in a sting operation. Officers arrested
Dygart, and the State charged him with two crimes: one
violation of section 847.0135(4)(a), which prohibits
traveling for sex with a child (or someone thought to be a
child) after using a computer to solicit a child for sex; and
one violation of section 847.0135(3)(a), which prohibits
using a computer to solicit a child (or someone thought to be
a child) for sex, whether the perpetrator travels or not.
convicted Dygart on both counts, and the trial judge
sentenced him to twenty-four months in prison, plus
sex-offender probation. Dygart appealed, arguing insufficient
evidence, entrapment, and double jeopardy, among others. This
court affirmed with a short opinion that addressed only the
double-jeopardy issue. Dygart v. State, 163 So.3d
1292 (Fla. 1st DCA 2015), quashed by Dygart v.
State, 2016 WL 1700524 (Fla. Apr. 28, 2016). On that
issue, the court concluded it was bound by this court's
earlier precedent holding that "dual convictions for
violation of sections 847.0135(3) and 847.0135(4), Florida
Statutes (2011), do not violate double jeopardy."
Id. The court noted, though, that the supreme court
had granted review in another case involving this same issue.
Id. (citing Shelley v. State, 134 So.3d
1138, 1140-42 (Fla. 2d DCA), review granted, 147
So.3d 527 (Fla. 2014)).
State v. Shelley, the supreme court held that
separate convictions for solicitation and traveling after
solicitation cannot stand if they are "based upon the
same conduct." 176 So.3d 914, 919 (Fla. 2015). The court
expressly disapproved our earlier decision in State v.
Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), which held
the opposite, and on which we had relied in Dygart's
initial appeal. See Dygart, 163 So.3d at 1292. The
supreme court then quashed our initial Dygart
decision, remanding for our reconsideration in light of
Shelley. Dygart, 2016 WL 1700524. We again
Shelley, the law is clear that a single solicitation
cannot support a conviction for solicitation and a separate
conviction for traveling after solicitation. 176 So.3d at
919. Our task, then, is to determine whether
Dygart's two convictions flowed from a single
solicitation-whether they were "based upon the same
conduct." Id.; see also Lee v. State,
223 So.3d 342, 351 (Fla. 1st DCA 2017) (en banc)
("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."), review granted,
SC17-1555 (Feb. 8, 2018).
bears the burden to show that the record demonstrates a
double-jeopardy violation. Lee, 223 So.3d at 353;
Sprouse v. State, 208 So.3d 785, 787 (Fla. 1st DCA
2016); Edwards v. State, 139 So.3d 981, 983 (Fla.
1st DCA 2014). Having reviewed the record, we conclude that
Dygart has not met his burden. The record includes dozens of
text messages over roughly twenty-four hours and included
transmissions from which a jury could find multiple, discrete
solicitations. Cf. § 847.0135(3), Fla. Stat.
(2011) ("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."). This means Dygart
cannot demonstrate that both of his convictions relied on the
same specific solicitation, which means that Shelley
does not require us to vacate either conviction.
not disagree with the concurring opinion's observation
that we should look to what the State charged. And nothing in
Lee requires otherwise. Here, the State charged
Dygart with one count of traveling (which includes as an
element an act of solicitation), along with one count of
solicitation (which likewise includes as an element an act of
solicitation). We have no reason to assume that both counts
are based on a single act of solicitation, particularly when
the record shows Dygart committed multiple acts of
solicitation. Nor can we accept the argument that an
individual act of solicitation is not "charged"
unless it is charged as a standalone solicitation,
unconnected to any traveling violation. When the State
charges traveling after solicitation, it is necessarily
accusing the defendant of solicitation because solicitation
is an element of the offense. See §
847.0135(4)(a), Fla. Stat. (2011) (prohibiting traveling for
the purpose of engaging in unlawful sexual conduct
"after using a computer online service [or other
electronic means] to: (a) Seduce, solicit, lure, or
entice" a person believed to be a child to engage in
unlawful sexual conduct).
an example. Suppose a defendant solicits a minor over the
Internet two separate times. No one would dispute that the
defendant could be charged with two counts of solicitation;
after all, he committed two separate offenses. Now suppose
that after one of the two solicitations the same defendant
travels to meet the minor for sex. Has he not still committed
two separate offenses? Of course he has: one for the crime of
solicitation (for the first solicitation, after which he did
not travel) and one for traveling to meet the minor after the
second solicitation. In this situation, the first offense
turned on one solicitation, and the second offense turned on
a second, independent solicitation. Shelley would
not require us to presume there was only one solicitation
when the record showed more. Instead, Shelley
applies only when multiple convictions turn on the
same solicitation. Shelley, 176 So.3d at
919 (finding double jeopardy violation when dual convictions
for solicitation and traveling after solicitation were
"based upon the same conduct"); Lee, 223
So.3d at 351-52 (noting that Shelley holding applies only
when multiple convictions are "based on a single act of
the concurring opinion notes that Dygart's jury was not
instructed that it could convict on both counts only if it
found two separate solicitations. But Dygart does not make
that argument himself, and he did not preserve any challenge
to the jury instructions. Nor has Dygart challenged the
adequacy of the verdict form or the specificity of the
charging document. He could have proposed different jury
instructions below, objected to the verdict form, or filed a
motion for a bill of particulars.[*] But we cannot reverse
based on issues he did not preserve and does not ...