NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

BRIAN THOMAS, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-1986 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed November 16, 2016. 

Appeal from the Circuit Court for Manatee 

County; Edward Nicholas, Judge. 

Joseph C. Bodiford of Bodiford Law, P.A., 

Tallahassee, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Marilyn Muir Beccue, 

Assistant Attorney General, Tampa; and 

Johnny T. Salgado, Assistant Attorney 

General, Tampa (substituted as counsel of 

record), for Appellee. 

LUCAS, Judge. 

Following a jury trial, Brian Thomas was convicted and sentenced on one 

count of traveling to meet a person to solicit a child to commit a sexual act under section 

847.0135(4)(b), Florida Statutes (2012) (count I), one count of using a computer to 
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solicit a person to commit a sexual act on a child in violation of section 847.0135(3)(b) 

(2012) (count II), and one count of attempted lewd or lascivious battery under sections 

800.04(a) and 777.04 (2012) (count III). He raises several issues in his appeal, but we 

find merit in only one, the denial of his motion for arrest of judgment and motion to 

dismiss count II of the information. 

Both counts I and II stemmed from the same course of conduct on the part 

of Mr. Thomas, who, by his own admission, was searching for a sexual liaison on 

Craigslist when he happened across a posting from what turned out to be an 

undercover Florida Department of Law Enforcement Agent posing as the online mother 

to fictional, minor-aged children. The operative information underlying Mr. Thomas' 

charges and criminal proceedings alleged, in count II, that Mr. Thomas, "on or about 

March 19, 2013, through March 22, 2013," used a computer online service to solicit the 

undercover agent for the purpose of engaging in unlawful sexual activity with minor 

children. Count I of the operative information alleged that Mr. Thomas then traveled on 

March 22, 2013, in order to solicit the agent for the purpose of engaging in unlawful 

sexual conduct with the children. The State does not describe any temporal break 

between Mr. Thomas' sustained and increasingly lurid text messages and online 

communications soliciting the FDLE agent from March 19 through March 22 and his 

driving to meet the agent at an agreed upon location on March 22. 

As such, Mr. Thomas is correct that his convictions for traveling to solicit 

under count I and solicitation under count II, under these facts, encompassed the same 

criminal conduct and violated the constitutional prohibition against double jeopardy. 

See State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015) ("Based on the plain language of 
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section 847.0135, we hold that the [l]egislature has not explicitly stated its intent to 

authorize separate convictions and punishments for conduct that constitutes both 

solicitation under subsection (3)(b) and traveling after solicitation under subsection 

(4)(b)."); Mahar v. State, 190 So. 3d 1123, 1125 (Fla. 2d DCA 2016) ("[T]he supreme 

court in Shelley considered and rejected the State's argument that the legislature 

intended to allow for multiple convictions that treat each instance of online 

communication as a separate offense, thereby also allowing for a conviction for both the 

communications and traveling for the same conduct."); Meythaler v. State, 175 So. 3d 

918, 920 (Fla. 2d DCA 2015) ("Accordingly, Mr. Meythaler's convictions and sentences 

for solicitation and traveling after solicitation based upon the same conduct 

impermissibly place him in double jeopardy."). We must, therefore, reverse Mr. 

Thomas' conviction and sentence for solicitation under count II and remand for the 

circuit court to vacate the conviction and sentence as to that count. 

 Affirmed in part; reversed in part; remanded with instructions. 

NORTHCUTT and SILBERMAN, JJ., Concur.