Boardwine v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
GARY BOARDWINE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2024-1353
January 16, 2026
Appeal from the Circuit Court for Hillsborough County; Kimberly K.
Fernandez, Judge.
Blair Allen, Public Defender, and Andrea M. Norgard, Assistant Public
Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and William C.
Shelhart, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
A jury found Gary Boardwine guilty of use of computer services or
devices to solicit certain illegal acts and the unlawful use of a two-way
communication device. We affirm Mr. Boardwine's judgment for use of
computer services or devices to solicit certain illegal acts without
comment. But we are compelled to vacate Mr. Boardwine's judgment

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and sentence for unlawful use of a two-way communication device
because it violates the prohibition against double jeopardy. See Lee v.
State, 258 So. 3d 1297, 1301-02 (Fla. 2018); Mizner v. State, 154 So. 3d
391, 399 (Fla. 2d DCA 2014) (vacating the appellant's conviction for
unlawful use of a two-way communication device on double jeopardy
grounds where the appellant was additionally convicted for using devices
to solicit certain illegal acts).
Because we reverse that judgment and sentence, Mr. Boardwine is
entitled to be resentenced on his conviction for use of computer services
or devices to solicit certain illegal acts. Upon resentencing the lower
court shall sentence Mr. Boardwine using a corrected scoresheet that
lists only his actual convictions. See Fernandez v. State, 199 So. 3d 500,
502 (Fla. 2d DCA 2016).
Affirmed in part, vacated in part, and remanded with directions.
KELLY, ROTHSTEIN-YOUAKIM, and LABRIT, JJ., Concur.
Opinion subject to revision prior to official publication.