         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D13-4977
                 _____________________________

NATHAN DYGART,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  ___________________________

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
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 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)).

     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.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

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

                                6
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,

                                   7
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.

                  _____________________________

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.




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