FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2023-1355

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LEVI BILLY JACK HARVILL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Bay County.

Dustin S. Stephenson, Judge.

August 21, 2024

LEWIS, J.

Appellant, Levi Billy Jack Harvill, appeals his convictions and 

sentences for six counts of lewd or lascivious exhibition and five 

counts of indecent exposure, arguing they violate the Double 

Jeopardy Clause of the United States and Florida Constitutions. 

For the reasons that follow, we conclude that only four of the five 

indecent exposure convictions must be vacated. 

Facts

Appellant was charged with six counts of lewd or lascivious 

exhibition, in violation of section 800.04(7)(a), (b), Florida Statutes 

(2022), and five counts of indecent exposure, in violation of section 

800.03(1), (2)(a), Florida Statutes (2022), based on allegations that 

he exposed his penis and masturbated in the presence of eleven 
2

individuals on July 24, 2022. Each count alleged a different victim, 

with the victims named in the first six counts being less than 

sixteen years of age. 

At a bench trial, the victims, members of three families who 

were all friends, testified that while they were at the Deer Point 

boat ramp and picnic area, they observed Appellant fondling and 

exposing his penis to them as he walked around for a long period 

of time. According to the victims, Appellant was not urinating, but 

rather masturbating with his pants unzipped and pulled down. 

Appellant, on the other hand, claimed that he was merely 

urinating. The trial court found Appellant guilty as charged in 

each count.

The trial court rejected Appellant’s double jeopardy claim that 

he could be convicted and sentenced on only one of the eleven 

counts upon finding that the offenses contemplate a victim-based 

unit of prosecution. Appellant was adjudicated guilty on each 

count, and he was sentenced on counts 1 through 6 to ten years of 

imprisonment, followed by five years of sex offender probation, and 

on counts 7 through 11 to time served, with all the sentences to 

run concurrently.1 This appeal followed.

Analysis

We review de novo double jeopardy claims based on 

undisputed facts. Beasley v. State, 363 So. 3d 122, 123 (Fla. 1st 

DCA 2023). Both the United States and Florida Constitutions 

contain double jeopardy clauses that prohibit multiple 

prosecutions, convictions, and punishments for the same criminal 

offense. Id.; see also U.S. Const. amend. V; Art. 1, § 9, Fla. Const. 

However, “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.” State v. Maisonet-Maldonado, 308 So. 3d 

63, 66 (Fla. 2020) (citation omitted). When the statutory language 

is void of an explicit statement authorizing separate punishments 

for two crimes, the sole method for determining whether multiple 

1 The trial court noted that it would impose the same sentence 

even if Appellant could be convicted on only one of the counts. 
3

punishments violate double jeopardy is the Blockburger2 “same 

elements” test, which is codified in section 775.021(4)(a), Florida 

Statutes, and provides that “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.” 

Id. at 66–67. Pursuant to section 775.021(4)(a), we must examine 

the statutory elements of the offenses and consider the entire 

range of conduct prohibited by the statutes, and we may not 

consider the specific conduct charged or proved at trial. Id. at 68, 

71. If the offenses are separate, we must next look to the three

exceptions to the Blockburger test: “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)(b), Fla. Stat. (2022). If none of the 

exceptions apply, “[t]he intent of the Legislature is to convict and 

sentence for each criminal offense committed in the course of one 

criminal episode or transaction.” Id.

Furthermore, to determine whether the defendant can be 

exposed to convictions and punishments for multiple counts of the 

same statutory offense arising out of a single incident without 

violating double jeopardy, the court must apply the allowable unit 

of prosecution standard, which is a common-sense approach that 

requires consideration of the overall statutory scheme and the 

language of the statute. State v. Rubio, 967 So. 2d 768, 777–78 

(Fla. 2007); see also State v. Johnson, 343 So. 3d 46, 48 (Fla. 2022). 

The “a/any” test is a useful, but nonexclusive linguistic tool in 

determining the intended unit of prosecution, pursuant to which

the use of the article “a” indicates a legislative intent to make each 

item subject to separate prosecution, and the use of the word “any” 

suggests that the unit of prosecution is ambiguous. Bautista v. 

State, 863 So. 2d 1180, 1183–84, 1188 (Fla. 2003); see also Rubio, 

967 So. 2d at 777–78. 

Section 800.04, Florida Statutes (2022), titled “Lewd or 

lascivious offenses committed upon or in the presence of persons 

less than 16 years of age,” provides in relevant part as follows:

2 Blockburger v. United States, 284 U.S. 299 (1932).
4 

(7) Lewd or lascivious exhibition.-- 

(a) A person who: 

1. Intentionally masturbates; 

2. Intentionally exposes the genitals in a lewd or 

lascivious manner; or 

3. Intentionally commits any other sexual act that does 

not involve actual physical or sexual contact with the 

victim, including, but not limited to, sadomasochistic 

abuse, sexual bestiality, or the simulation of any act 

involving sexual activity 

in the presence of a victim who is less than 16 years of 

age, commits lewd or lascivious exhibition. 

(b) An offender 18 years of age or older who commits a 

lewd or lascivious exhibition commits a felony of the 

second degree, punishable as provided in s. 775.082, 

s. 775.083, or s. 775.084.

(c) An offender less than 18 years of age who commits a 

lewd or lascivious exhibition commits a felony of the third 

degree, punishable as provided in s. 775.082, s. 775.083, 

or s. 775.084.

(Emphasis added.)3 See also Fla. Std. Jury Instr. (Crim.) 11.10(e) 

(providing in part that “‘[i]n the presence of’ means that (victim) 

saw, heard, or otherwise sensed that the act was taking place”). 

The statute defines “victim” as “a person upon whom an offense 

described in this section was committed or attempted or a person 

who has reported a violation of this section to a law enforcement 

officer.” § 800.04(1)(d), Fla. Stat. (emphasis added). 

3 The remainder of the statute, which proscribes lewd or 

lascivious battery, lewd or lascivious molestation, and lewd or 

lascivious conduct, similarly uses the language “a person,” except 

in section 800.04(4)(a)2., which refers to “any person.” § 800.04, 

Fla. Stat. 
5

Section 800.03, Florida Statutes (2022), is titled “Exposure of 

sexual organs” and provides in pertinent part as follows:

(1) A person commits unlawful exposure of sexual organs 

by:

(a) Exposing or exhibiting his or her sexual organs in 

public or on the private premises of another, or so near 

thereto as to be seen from such private premises, in a 

vulgar or indecent manner; or

(b) Being naked in public in a vulgar or indecent manner.

(2)(a) Except as provided in paragraph (b), a violation of 

this section is a misdemeanor of the first degree, 

punishable as provided in s. 775.082 or s. 775.083.

(b) A second or subsequent violation of this section is a 

felony of the third degree, punishable as provided in s. 

775.082, s. 775.083, or s. 775.084.

See also Fla. Std. Jury Instr. (Crim.) 11.9 (noting that “[i]f 

defendant is charged only with exposure of sexual organs in public, 

the State need not prove that someone was offended. However, for 

cases involving exposure of sexual organs on private premises or 

so near to be seen from the premises, the jury must be instructed 

on element #5,” which is that “[t]he exposure or exhibition of sexual 

organs caused offense to one or more persons viewing it”). 

Unlawful exposure is a category 2 lesser offense of lewd or 

lascivious exhibition. Fla. Std. Jury Instr. (Crim.) 11.10(e). 

First, we must apply the Blockburger same elements test to 

determine whether Appellant’s punishments for both lewd or 

lascivious exhibition and indecent exposure arising from the same 

criminal transaction violate double jeopardy. The two offenses are 

separate because each requires proof of an element that the other 

does not – age of the victim in section 800.04(7) and location in 

section 800.03(1) –, and section 800.04(7) prohibits a wider range 

of conduct such that a violation thereof can be established with 

proof of an act other than exposure. Additionally, none of the 

exceptions in section 775.021(4)(b) apply. See MaisonetMaldonado, 308 So. 3d at 71 (explaining that when two offenses 
6 

satisfy the same elements test, the third exception does not apply 

because “[i]f two statutory offenses are found to be separate under 

Blockburger, then the lesser offense is not subsumed by the greater 

offense”); State v. Florida, 894 So. 2d 941, 947 (Fla. 2005), 

disapproved on other grounds by Valdes v. State, 3 So. 3d 1067 (Fla. 

2009) (explaining that section 775.21(4)(b)(3) only applies to 

category 1 necessary lesser-included offenses and not to category 2 

permissive lesser-included offenses). Given such, Appellant’s 

convictions for both lewd or lascivious exhibition and indecent 

exposure do not violate double jeopardy. 

Next, we must consider whether Appellant can be convicted of 

multiple counts of lewd or lascivious exhibition arising out of a 

single incident by determining the allowable unit of prosecution 

under section 800.04(7). Appellant asserts that the allowable unit 

of prosecution is the number of lewd acts, not the number of 

victims, and in support he relies on the Florida Supreme Court’s 

holding in State v. Hernandez, 596 So. 2d 671, 672 (Fla. 1992), that 

when a defendant commits a single act of lewd behavior in front of 

multiple children, he cannot be convicted of a separate count of 

lewd act for each child present. Hernandez does not control our 

decision because the supreme court construed subsection (3) of 

section 800.04, Florida Statutes (1987), which provided as follows:

Any person who: 

(1) Handles, fondles or makes an assault upon any child 

under the age of 16 years in a lewd, lascivious, or indecent 

manner; 

(2) Commits an act defined as sexual battery under s. 

794.011(1)(h) upon any child under the age of 16 years; or

(3) Knowingly commits any lewd or lascivious act in the 

presence of any child under the age of 16 years without 

committing the crime of sexual battery is guilty of a 

felony of the second degree, punishable as provided in s. 

775.082, s. 775.083, or s. 775.084. Neither the victim’s 

lack of chastity nor the victim’s consent is a defense to the 

crime proscribed by this section. 
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Id. (emphasis added). Section 800.04 was significantly amended 

in 1999, with the revisions including the replacement of the phrase 

“in the presence of any child” with the phrase “in the presence of a 

victim.” 

Section 800.04 now requires the prohibited act to be done “in 

the presence of a victim who is less than 16 years of age,” and it 

defines “victim” as “a person” upon whom the described offense 

was committed or who reported a violation of the statute to the 

police. The statute also provides that “[n]either the victim’s lack 

of chastity nor the victim’s consent is a defense to the crimes 

proscribed by this section” and that “[t]he perpetrator’s ignorance 

of the victim’s age, the victim’s misrepresentation of his or her age, 

or the perpetrator’s bona fide belief of the victim’s age cannot be 

raised as a defense in a prosecution under this section.” 

§ 800.04(2), (3), Fla. Stat. The apparent purpose of section 800.04 

is to protect children under sixteen from harm that can result from 

exposure to lewd acts. See Odom v. State, 561 So. 2d 443, 444 (Fla. 

5th DCA 1990). The statute’s use of the article “a” before “victim” 

signals a legislative intent to permit prosecution for each victim. 

The Fourth District recently examined a very similar statute 

and rejected a double jeopardy challenge to convictions for two 

counts of lewd or lascivious exhibition in the presence of a 

correctional facility employee, in violation of section 800.09(2)(a), 

Florida Statutes (2021), which provided in part that a detained 

person may not “intentionally masturbate . . . in the presence of a 

person he or she knows or reasonably should know is an 

employee.”4 Brown v. State, 374 So. 3d 832, 836 (Fla. 4th DCA 

4 Section 800.09(2)(a), Florida Statutes, provides as follows: 

(2)(a) A person who is detained in a facility may not:

1. Intentionally masturbate;

2. Intentionally expose the genitals in a lewd or lascivious 

manner; or

3. Intentionally commit any other sexual act that does not 

involve actual physical or sexual contact with the victim, 

including, but not limited to, sadomasochistic abuse, 
8

2023) (reflecting that the appellant masturbated once in the 

presence of two employees). The court determined that the 

allowable unit of prosecution under section 800.09(2) is the 

number of employees, not the number of lewd acts, because the 

statute’s use of the article “a” in the phrase “presence of a person” 

indicates that each person present during the exposure will 

support a separate charge. Id. The court distinguished Hernandez

because the statute in that case proscribed the knowing 

commission of a lewd act in the presence of “any child,” whereas 

section 800.09(2) used the word “a” instead of “any,” indicating 

that “section 800.09(2)’s focus is on the number of employees 

present during the commission of a lewd act, not the number of 

distinct lewd acts committed.” Id. The same is true for section 

800.04(7). 

Based on the statutory language, the purpose of the statute, 

the application of the a/any test, and Brown’s analysis of an

analogous statute, we conclude that the allowable unit of 

prosecution under section 800.04(7) is the number of victims, not 

the number of lewd acts. Therefore, we affirm Appellant’s 

convictions and sentences on the six counts of lewd or lascivious 

exhibition.

Finally, we look for the allowable unit of prosecution under 

section 800.03 to determine whether Appellant can be convicted of 

multiple counts of indecent exposure arising out of a single 

incident. Unlike section 800.04(7), section 800.03(1) is not 

amenable to the a/any test as it contains neither word in reference 

to the victim. What is more, the statute does not reference a 

victim, and it contemplates multiple witnesses to the vulgar act 

through its references to the exposure occurring in public. Because 

section 800.03(1) is ambiguous, the rule of lenity requires us to 

resolve the ambiguity in Appellant’s favor and hold that the 

allowable unit of prosecution is the number of exposures, not the 

number of persons witnessing it. See § 775.021(1), Fla. Stat. (“The 

sexual bestiality, or the simulation of any act involving 

sexual activity,

in the presence of a person he or she knows or reasonably 

should know is an employee.
9

provisions of this code and offenses defined by other statutes shall 

be strictly construed; when the language is susceptible of differing 

constructions, it shall be construed most favorably to the 

accused.”); see also Bautista, 863 So. 2d at 1183 (explaining that if 

the statute is ambiguous, “the rule of lenity applies to resolve the 

ambiguity against turning a single transaction into multiple 

offenses”); Hill v. State, 351 So. 3d 1222, 1228 (Fla. 2d DCA 2022)

(applying the rule of lenity to reverse three of the four convictions 

for failure to register as a sex offender because the statutes were 

ambiguous as to whether the Legislature intended for the offender 

to be charged with one or multiple counts of the offense). Thus, we 

reverse Appellant’s convictions and sentences on four of the five 

counts of indecent exposure. 

Conclusion

Therefore, we affirm Appellant’s convictions and sentences on 

the six counts of lewd or lascivious exhibition and on one of the five 

counts of indecent exposure, but we reverse and remand with 

instructions that the trial court vacate the convictions and 

sentences on the remaining four counts of indecent exposure as 

they violate double jeopardy.

AFFIRMED in part, REVERSED in part, and REMANDED with 

instructions. 

ROBERTS and RAY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Jessica J. Yeary, Public Defender, and Kasey Lacey, Assistant 

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Michael Schaub, Assistant 

Attorney General, Tallahassee, for Appellee.