NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JAE-IL BYUN, )

)

Appellant, )

)

v. ) Case No. 2D17-3838

)

STATE OF FLORIDA, )

)

Appellee. )

)

Opinion filed March 6, 2019.

Appeal from the Circuit Court for Polk 

County; J. Kevin Abdoney, Judge.

Cassandra Snapp and Mark L. Horwitz 

of Law Offices of Horwitz & Citro, P.A., 

Orlando; and Bennett R. Ford, III, of The 

Ford Law Office, P.A., Orlando, for 

Appellant.

Ashley Moody, Attorney General, 

Tallahassee, and Kiersten E. Jensen, 

Assistant Attorney General, Tampa, for 

Appellee. 

ROTHSTEIN-YOUAKIM, Judge.

After unsuccessfully attempting to dismiss the latter charge on doublejeopardy grounds, Jae-Il Byun pleaded no contest to unlawfully traveling to meet a 

minor, in violation of section 847.0135(4)(a), Florida Statutes (2015), and to attempted 
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lewd battery, in violation of sections 800.04(4)(a)(1) and 777.04(1), Florida Statutes 

(2015). Byun reserved his right to challenge the denial of his motion to dismiss on 

appeal from the final judgment, and we now affirm.

Factual and Procedural Background

At approximately 11:00 p.m. on June 2, 2016, Byun began communicating 

online with an undercover Polk County Sheriff's detective who was posing as a 

fourteen-year-old girl ("the victim"). During the online conversations, Byun offered to 

pay the victim to engage in sexual activity, and he arranged to go to her "home." Byun 

arrived at the agreed-upon location at approximately 12:30 a.m. on June 3, 2016, 

having stopped along the way to get cash and buy condoms. He was arrested after he 

knocked on the front door.

Based on this conduct, the State charged Byun in count one with the 

unlawful travel (a second-degree felony) and in count two with the attempted lewd 

battery (a third-degree felony).1 Byun moved to dismiss count two on double-jeopardy 

grounds, arguing that the elements of attempted lewd battery are entirely subsumed 

within the elements of unlawful travel. Ultimately, the trial court determined that both 

charges had arisen out of the same conduct in a single criminal episode but concluded 

that each charge required proof of an element that the other did not:

Traveling to Meet a Minor requires the perpetrator use an 

enumerated electronic device or service to facilitate 

proscribed communication whereas no such element is 

necessary to prove an Attempted Lewd Battery. Further, 

Attempted Lewd Battery necessarily requires proof of failure 

1The State also initially charged Byun in count three with unlawful use of a 

two-way communications device, in violation of section 934.215, Florida Statutes 

(2015). The trial court granted Byun's motion to dismiss that count on double-jeopardy 

grounds.
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to commit Lewd Battery, or prevention or interception in its 

commission. No such requirement exists for Traveling to 

Meet a Minor.

Analysis

The constitutional prohibition against double jeopardy does not preclude 

multiple punishments for different offenses arising out of the same conduct in a single 

criminal episode so long as the legislature intends to authorize separate punishments. 

See Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). Here, the parties identify no clear 

expression of legislative intent with regard to unlawful travel and attempted lewd battery, 

and we have discerned none. Thus, we must determine whether Byun's convictions 

and sentences for both offenses violate the Blockburger2 test codified in section 

775.021(4), Florida Statutes (2015). See Valdes, 3 So. 3d at 1070. That section 

provides:

(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; and the sentencing judge may order the 

sentences to be served concurrently or consecutively. 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 . . . to determine legislative intent. 

Exceptions to this rule of construction are:

1. Offenses which require identical 

elements of proof.

2Blockburger v. United States, 284 U.S. 299 (1932).
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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).

Under this analysis, we look to elements, not to facts. See Roughton v. 

State, 185 So. 3d 1207, 1210 (Fla. 2016) ("[T]he plain language of section 

775.021(4)(a)[ ] requires that the elements of the offenses be compared 'without regard 

to the accusatory pleading or the proof adduced at trial.' " (emphasis omitted)); State v. 

Carpenter, 417 So. 2d 986, 988 (Fla. 1982) ("In applying the Blockburger test the courts 

look only to the statutory elements of each offense and not to the actual evidence to be 

presented at trial or the facts as alleged in a particular information." (citing Whalen v. 

United States, 445 U.S. 684, 694 n.8 (1980))). To establish a violation of section 

847.0135(4)(a), the evidence must establish that the defendant (1) knowingly traveled 

either within this state, to this state, or from this state, or attempted to do so (2) for the 

purpose of engaging in any illegal act described in chapters 794, 800, or 827, or to 

otherwise engage in other unlawful sexual conduct (3) with a child or with a person that 

the defendant believed to be a child (4) after using a computer or other device capable 

of electronic communication (5) to seduce, solicit, lure, or entice the child or person that 

the defendant believed to be a child to engage in the illegal act or other unlawful sexual 

conduct or to attempt to do so. To establish a violation of section 800.04(4)(a)(1), the 

evidence must establish that the defendant "engag[ed] in sexual activity with a person 

12 years of age or older but less than 16 years of age." Thus, to establish an attempt to 

violate section 800.04(4)(a)(1), the evidence must clearly establish (1) that the 
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defendant intended to engage in sexual activity with a person twelve years of age or 

older but less than sixteen years of age and (2) that the defendant committed an overt 

act toward doing so. See § 777.04(1).

What is not so clear is whether, as the trial court concluded, attempt also 

requires proof of a third element: that the defendant failed to successfully complete the 

crime. See, e.g., Fla. Std. Jury Instr. (Crim.) 5.1 (requiring jury to find that defendant 

"would have committed the crime except that a. someone prevented [him] [her] from 

committing the crime of (crime attempted) . . . [or] b. [he] [she] failed"); Duclos-Lasnier v. 

State, 192 So. 3d 1234, 1238 (Fla. 2d DCA 2016) (stating that attempt has three 

elements, one of which being that the defendant failed to successfully complete the 

crime (quoting Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA 2010))); Harris v. State, 

76 So. 3d 1080, 1082-83 (Fla. 2d DCA 2011) ("The evidence here did not support and 

the jury obviously did not find that someone prevented Harris from committing the 

robbery in count one or that he failed to commit the robbery. Therefore, the jury did not 

find beyond a reasonable doubt that Harris committed an attempted robbery."); Barrios 

v. State, 75 So. 3d 374, 377 (Fla. 4th DCA 2011) ("Criminal attempt requires three 

elements: the intent to commit a crime, an overt act towards its commission, and failure 

to successfully complete the crime." (quoting Bist, 35 So. 3d at 941)); Bist, 35 So. 3d at 

941 (same (citing Morehead v. State, 556 So. 2d 523, 524 (Fla. 5th DCA 1990))). But 

see, e.g., Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988) ("Essentially, we have 

required the state to prove two general elements to establish an attempt: a specific 

intent to commit a particular crime, and an overt act toward its commission." (footnote 

omitted)); State v. Coker, 452 So. 2d 1135, 1136 (Fla. 2d DCA 1984) ("An attempt to 
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commit a crime consists of two essential elements: a specific intent to commit the 

crime, and an overt act, beyond mere preparation, done toward its commission. The 

intent and the act must be such that they would have resulted, but for the interference of 

some cause preventing the carrying out of the intent, in the completed commission of 

the crime."); Berger v. State, 259 So. 3d 933, 934 (Fla. 5th DCA 2018) ("Thus, 'the two 

elements comprising an attempt to commit a crime are (1) a specific intent to commit 

the crime and (2) an overt act done toward its commission that is beyond mere 

preparation.' " (quoting Mizner v. State, 154 So. 3d 391, 397 (Fla. 2d DCA 2014))); 

State v. Ortiz, 766 So. 2d 1137, 1143 (Fla. 3d DCA 2000) (" 'By its nature, attempt 

occupies the conceptual area between the non-commission of the greater offense and 

the completion of the greater offense itself.' The two necessary elements for an attempt 

to commit a crime [are]: (1) a specific intent to commit a particular crime and (2) an 

overt act toward its commission." (first quoting Wilson v. State, 622 So. 2d 31, 36 (Fla. 

1st DCA 1993), approved, 635 So. 2d 16 (Fla. 1994); then citing Geldreich v. State, 763 

So. 2d 1114, 1118 (Fla. 4th DCA 1999))); Geldreich, 763 So. 2d at 1118 ("Two 

necessary elements establish an attempt to commit a crime: 'a specific intent to commit 

a particular crime, and an overt act toward its commission.' " (quoting State v. Walker, 

705 So. 2d 589, 591 (Fla. 4th DCA 1997))). It is to this question that Byun and the State 

devote the bulk of their attention and argument on appeal. 

But it is a question that we need not resolve today, because in their 

singular focus, the parties have wholly failed to apprehend, let alone address, the 
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significance of a much clearer difference between the elements of the two offenses.3 

Unlawful travel requires proof that the child victim is less than 18 years old. See § 

847.001(3) (defining "child pornography" as "any image depicting a minor engaged in 

sexual conduct"); § 847.001(8) (defining "minor" as "any person under the age of 18 

years"); Fla. Std. Jury Instr. (Crim.) 11.17(c) (defining "child" for purposes of section 

847.0135(4)(a) as "any person, whose identity is known or unknown, less than 18 years 

of age"); cf. § 847.001(1) (defining "adult" as "a person 18 years of age or older"). 

Attempted lewd battery, however, requires proof that the intended child victim is at least 

twelve years' old but less than sixteen years' old. § 800.04(4)(a)(1); see also Glover v. 

State, 863 So. 2d 236, 238 (Fla. 2003) (holding that age of the victim is an essential 

element of capital sexual battery).

Accordingly, attempted lewd battery has an element that unlawful travel 

does not have,4 and Byun's argument that attempted lewd battery is subsumed within 

unlawful travel, i.e., that every unlawful travel will necessarily and inevitably be 

chargeable as an attempted lewd battery, fails. See Aiken v. State, 742 So. 2d 811, 

3The court brought this difference to the parties' attention for the first time 

at oral argument, and we were not foreclosed from doing so despite that no one had 

ever raised it previously: double jeopardy claims based on undisputed facts present 

pure questions of law, Graham v. State, 207 So. 3d 135, 137 (Fla. 2016), and we may 

affirm the trial court for any reason that the record supports, cf. Shands Teaching Hosp. 

& Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So. 3d 204, 212 (Fla. 2012) ("[A]n appellate 

court should affirm a trial court that 'reaches the right result, but for the wrong reasons' if 

there is 'support for the alternative theory or principle of law in the record before the trial 

court.' " (quoting Robertson v. State, 829 So. 2d 901, 906-07 (Fla. 2002))).

That said, we note and appreciate defense counsel Ford's efforts at oral 

argument to balance his duty to zealously represent his client with his duty of candor to 

the court when confronted with this basis for affirmance for the first time.

4And, obviously, unlawful travel has elements that attempted lewd battery 

does not have.
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812 (Fla. 2d DCA 1999) (en banc) (holding that only necessarily lesser included 

offenses are subsumed pursuant to section 775.021(4)(b)(3) and receding from 

language in a prior case "which states that a defendant may not be convicted of a 

permissive lesser included offense when he has been convicted of the greater offense, 

with both offenses arising out of the same criminal act" (citing State v. McCloud, 577 So. 

2d 939, 941 (Fla. 1991))); State v. Sholl, 18 So. 3d 1158, 1163 (Fla. 1st DCA 2009) 

("Nor can it be argued that lewd or lascivious exhibition is a necessarily included lesser 

offense of transmitting material harmful to a minor via electronic device. . . . [T]he 

transmission charge requires the victim to be under 18, while the exhibition charge 

requires the victim to be under 16. Therefore, if a defendant transmits material harmful 

to a minor via electronic device to a 17-year old victim, he/she may be charged under 

the transmissions statute but not the exhibition statute, as the victim is over 16 years of 

age."). Indeed, had Byun's putative victim been sixteen years' old, Byun would still be 

guilty of unlawful travel,5 but, as a matter of law, he could not be guilty of attempted 

lewd battery because of the age requirement. Byun's conduct, therefore, constituted 

two separate offenses that the legislature intended be punished separately, and the trial 

court correctly denied his motion to dismiss on double-jeopardy grounds.

Conclusion

Applying the Blockburger "same elements" test, we hold that Byun's 

convictions for unlawful travel under section 847.0135(4)(a) and for attempted lewd 

5Specifically, it would have been a second-degree felony for Byun, who 

was twenty-four years' old at the time of the offense, to have engaged in sexual activity 

with a sixteen year old. See § 794.05(1), Fla. Stat. (2015).
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battery under sections 800.04(4)(a)(1) and 777.04(1) do not violate the prohibition 

against double jeopardy. Accordingly, we affirm.

Affirmed.

SILBERMAN and VILLANTI, JJ., Concur.