FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D13-4977

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NATHAN DYGART,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

Jackie L. Fulford, Judge.

May 18, 2018

ON REMAND FROM THE FLORIDA SUPREME COURT

WINSOR, J.

In the 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.” 

When he 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 
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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. 

A jury 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 doublejeopardy 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)). 

In 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 affirm.

After 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 
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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).

Dygart 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.

We do 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] 
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to: (a) Seduce, solicit, lure, or entice” a person believed to be a child 

to engage in unlawful sexual conduct).

Consider 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 solicitation”).

Last, 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 

argue here. Our only issue is whether, on this record, Dygart has 

 * Had Dygart successfully challenged his convictions based on 

the jury instructions or verdict forms, his remedy would have been 

a new trial—not our permanently vacating one of his two 

convictions. See, e.g., Ramroop v. State, 214 So. 3d 657, 668 (Fla. 

2017). 
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met his burden of showing a double-jeopardy violation. Because he 

has not, we affirm.

AFFIRMED.

WINOKUR, J., concurs; MAKAR, J., concurs in result dubitante with 

opinion.

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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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MAKAR, J., concurring in result dubitante.

Our en banc decision in Lee v. State, 223 So. 3d 342 (Fla. 1st 

DCA 2017), reh’g denied (Aug. 8, 2017), rev. granted, SC17-1555 

(Feb. 8, 2018), rejected cogent double jeopardy claims and curbed 

the applicability of State v. Shelley, 176 So. 3d 914 (Fla. 2015), 

upon which the remand in this case is based. But for Lee, Shelley

would control in this case. As in Shelley, Dygart was charged by 

information with a single violation of section 847.0135(3) (one act 

of solicitation on or about October 15th-16th) and a single violation 

of section 847.0135(4)(b) (“traveling after solicitation” on or about 

October 16th). Like Shelley, where the “State relied upon the same 

conduct to charge both offenses,” id. at 916-17, the charges here 

relied upon the same conduct over the same closely-specified time 

period. And, similarly to what happened in Shelley, the State 

charged no separate and distinct counts of solicitation; only one 

count was charged against Shelley and Dygart.

Under these circumstances, Shelley holds that dual 

convictions for these two offenses violates double jeopardy because 

the charged solicitation count is subsumed in the charged traveling 

after solicitation count. If Dygart had pled guilty to the two counts, 

as Shelley did, he would be entitled to relief; that he went to trial 

and was convicted on the two charged counts shouldn’t change that 

result. Either way, the State is constrained by what it charged, not 

what it could have charged. As the Second District in Shelley said:
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The State asserts that because Shelley’s three separate 

uses of computer devices on the date charged in the 

information would have supported three separate 

soliciting charges, the soliciting charge is not subsumed 

by the traveling charge. We are not persuaded by this 

argument. The State only charged one use of computer 

devices to solicit, and that charge was based on a 

solicitation occurring on the same date as the traveling 

offense. We find no legal basis to deny a double jeopardy 

challenge based on uncharged conduct simply because it 

could have been charged. But we acknowledge that 

convictions for both soliciting and traveling may be 

legally imposed in cases in which the State has charged 

and proven separate uses of computer devices to solicit.

Shelley v. State, 134 So. 3d 1138, 1141-42 (Fla. 2d DCA 2014) 

(emphasis added), approved, 176 So. 3d 914 (Fla. 2015); see also

Stapler v. State, 190 So. 3d 162, 164-65 (Fla. 5th DCA 2016) 

(“While we acknowledge that the State can convict a defendant on 

multiple counts of solicitation where multiple counts are alleged 

and established, we join the Second District Court of Appeal in 

declining to deny a double-jeopardy claim ‘based on uncharged 

conduct simply because it could have been charged.’”) (footnote 

omitted); Pamblanco v. State, 199 So. 3d 507 (Fla. 5th DCA 2016) 

(finding a double jeopardy violation where “unlawful solicitation 

and travel took place over several days in February 2010” such 

that “the State could have charged Appellant with multiple counts 

of solicitation and traveling with regard to the multiple offenses 

occurring on multiple occasions. However, the information charged 

Appellant with one count of solicitation and one count of traveling 

based on the same conduct.”).

But Lee holds differently. Rather than looking at what the 

State actually charged to determine whether separate and distinct 

solicitations were alleged and proven, Lee undertakes de novo 

appellate review of the trial record in search of evidence of two 

separate and distinct solicitations, despite only one act of 

solicitation having been charged. If the appellate court on its own 

can glean two acts of solicitation from the record on appeal—one 

charged and one uncharged—Shelley doesn’t apply and the double 

jeopardy violation vanishes. That’s why Lee’s holding is in 
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apparent conflict with what the Second District held in Shelley

(and what other districts hold as well, see Stapler, Pamblanco), 

which is to draw the line at only charged conduct.

Moreover, the jury in this case—as in Lee—was not instructed 

that it must find two separate and distinct acts of solicitation to 

convict the defendant on both the solicitation and “traveling after 

solicitation” counts (one solicitation would be subsumed in the 

“traveling after solicitation” count and the other would have to be 

separate and distinct from the first to avoid a double jeopardy 

violation). Like those in Lee, the jury instructions in this case did 

not make this distinction, made no reference to the dates in the 

information, and did not limit the jury’s consideration of 

uncharged solicitations. The verdict form was equally barren, 

asking only two questions, i.e., whether they found defendant 

“guilty as charged of Unlawful Use of Computer Service” and 

“guilty as charged of Traveling To Meet a Minor.” 

Under these circumstances, because it can’t be demonstrated 

that the jury’s verdict was based on separate and distinct acts, it 

is impossible to conclude that a double jeopardy violation didn’t 

occur. Lee, 223 So. 3d at 372 (“[T]he 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.”) (Makar, J., concurring in part, dissenting in part); id. at 371 

(“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.”) (Bilbrey, J., 

concurring in part, dissenting in part); see also Assanti v. State, 42 

Fla. L. Weekly D1747 (Fla. 1st DCA Aug. 10, 2017) (“Because of 

how the case was charged, and without a special verdict form, we 

do not know that the jury did not use the same act of solicitation 

to convict the Appellant for violating section 847.0135(3)(a) and to 

satisfy the solicitation element under section 847.0135(4)(a).”) 

(Bilbrey, J., concurring in result). An easy fix for this constitutional 

problem exists, that being to charge separate and distinct counts 

of solicitation, as the Legislature has authorized, but that wasn’t 

done here. See Lee, 223 So. 3d at 372 (Makar, J., concurring in part, 
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dissenting in part); see also Straitiff v. State, No. 5D16-2913, slip 

op. at 8-9, 2017 WL 4553902 (Fla. 5th DCA Oct. 13, 2017) 

(Lambert, J., concurring and concurring specially).

But Lee has left the runway, its dissenters’ views mere 

contrails. While I concur in the result in this case, because 

adherence to Lee is required, it is not without continuing doubt as 

to Lee’s correctness and its shelf life due to its conflict with the 

Shelley decision and those from other districts.

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Andy Thomas, Public Defender, and Kathleen Stover, Assistant 

Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, 

Assistant Attorney General, Tallahassee, for Appellee.