Dominguez v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
ARMANDO RUBEN DOMINGUEZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2023-1818
February 18, 2026
Appeal from the Circuit Court for Hillsborough County; Lyann Goudie,
Judge.
Blair Allen, Public Defender, and Tim Bower Rodriguez, Special Assistant
Public Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Helene S. Parnes,
Senior Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Judge.
Armando Ruben Dominguez appeals his convictions and sentences
for three counts of sexual battery on a person older than twelve but less
than eighteen years old, two counts of lewd or lascivious battery on a
person older than twelve but less than sixteen years old, one count of
unlawful sexual activity with a minor, and one count of unlawful use of a

2
two-way communications device. He argues on appeal that his
convictions for two of the sexual battery counts (counts I and III) and his
convictions for the two lewd or lascivious battery counts (counts IV and
V) violate the constitutional prohibition against double jeopardy. We
conclude that Mr. Dominguez's convictions and sentences for the sexual
battery offenses do not violate double jeopardy principles and affirm
counts I and III. However, because his convictions and sentences for the
two counts of lewd or lascivious battery do violate the prohibition against
double jeopardy, we reverse his conviction and sentence on count V.
I. PROCEDURAL BACKGROUND
In an amended information, counts I and III alleged that between
July 17, 2016, and December 31, 2020, Mr. Dominguez violated section
794.011(5)(a), Florida Statutes (2016), by committing sexual battery on
the victim, and both counts alleged different acts of sexual battery.
Counts IV and V alleged that between July 17, 2016, and December 31,
2020, Mr. Dominguez violated section 800.04(4)(a)1, (b), Florida Statutes
(2016), by committing lewd or lascivious battery by engaging "in sexual
activity with" the victim on one or more occasions. The language in
counts IV and V is identical.
Before the amended information was filed, Mr. Dominguez filed a
motion for statement of particulars in which he sought specificity from
the State as to which acts were being charged and the dates and places
in which the acts allegedly occurred. He explained, among other things,
the difficulties in defending himself against the charges, the prejudice he
would suffer, the potential for his being "placed in jeopardy multiple
times for the same offense," and the ability the State would have to
"select any of the acts alleged by the victim as the act charged in the
respective counts of the Information [that] would allow the State to

3
'substitute' other alleged similar acts as those alleged in the
Information."
Following a hearing, the trial court directed the State to
"prepare a statement of particulars and/or an amended
information to include as much detail as possible and to
narrow the dates of the sexual acts alleged in counts one
through five to more accurately reflect the testimony of the
victim and [be] consistent with the allegations set forth in the
'State's Notice of Intent to Rely on Williams Rule Evidence.' "
Our record does not reflect that the State filed a statement of particulars
though it did file an amended information. As to counts IV and V, the
amended information changed the date range, but it alleged the identical
period of July 17, 2016, to December 31, 2020, for each count. The
State otherwise failed to provide additional specificity as to the sexual
acts alleged.
II. DISCUSSION
Double jeopardy "prohibits subjecting a person to multiple
prosecutions, convictions, and punishments for the same criminal
offense." Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). Double
jeopardy clauses are contained in both the United States and Florida
Constitutions. Amend. V, U.S. Const. ("[N]or shall any person be subject
for the same offence to be twice put in jeopardy of life or limb . . . ."); art.
I, § 9, Fla. Const. ("No person shall . . . be twice put in jeopardy for the
same offense . . . ."). "This protection applies both to successive
punishments and to successive prosecutions for the same criminal
offense." United States v. Dixon, 509 U.S. 688, 696 (1993); see also
Valdes, 3 So. 3d at 1069 ("The most familiar concept of the term 'double
jeopardy' is that the Constitution prohibits subjecting a person to

4
multiple prosecutions, convictions, and punishments for the same
criminal offense.").1
Double jeopardy protection applies when two offenses are "the
same in law and in fact." Trappman v. State, 384 So. 3d 742, 747 (Fla.
2024) (emphasis omitted) (quoting Burton v. United States, 202 U.S. 344,
380 (1906)). Mr. Dominguez's charges in counts I and III are
undoubtedly the same in law because both counts charge him with
violating section 794.011(5)(a). The same is also true for counts IV and V
because both counts charge him with violating section 800.04(4)(a)1, (b).
Thus, the question is whether the offenses are the same factually.
When deciding whether offenses are the same in fact, courts must
determine whether the two convictions are based on distinct acts that
permit separate punishments under the statute. Graham v. State, 207
So. 3d 135, 139 (Fla. 2016). This "distinct acts" test is used "where the
defendant is convicted multiple times under the same statute for acts
that occurred during the course of a single criminal episode." Id. at 141.
To determine whether multiple convictions "are based upon the
same conduct for purposes of double jeopardy, the reviewing court
should consider only the charging document." Lee v. State, 258 So. 3d
1297, 1299 (Fla. 2018). In Lee, the Florida Supreme Court recognized
that it had previously "rejected the argument that a reviewing court could
save an otherwise nonspecific charging document by conducting its own
examination of the evidentiary record to sustain the convictions." Id. at
1303 (citing State v. Shelley, 176 So. 3d 914 (Fla. 2015)). The court held
1 Though Mr. Dominguez did not preserve these arguments below,
the double jeopardy violations he argues on appeal would "constitute[]
fundamental error that may be raised for the first time on appeal." Kania
v. State, 243 So. 3d 1032, 1033 (Fla. 2d DCA 2018).

5
that "[a] reviewing court's ability to find evidence in the record to support
multiple convictions is insufficient to defeat a double jeopardy claim
when nothing in the charging document suggests that the convictions
were based on separate conduct." Id. at 1303-04. Indeed, "the issue 'is
not one of evidentiary sufficiency' but of 'constitutional sufficiency.' " Id.
at 1304 (quoting Lee v. State, 223 So. 3d 342, 374 (Fla. 1st DCA 2017)
(Makar, J., concurring in part, dissenting in part)).
This court has consistently followed our supreme court's opinion in
Lee. In Morejon-Medina v. State, 277 So. 3d 1118, 1119 (Fla. 2d DCA
2019), the defendant was charged
with using a computer to solicit a child to commit a sex act
(solicitation) "on or between February 12, 2013[,] and
February 14, 2013," in violation of section 847.0135(3)(a),
Florida Statutes (2012), and traveling after soliciting a child to
commit a sex act (traveling after solicitation) "on or about
February 15, 2013," in violation of section 847.0135(4)(a).
While the wording of the charging document was different for each count
and asserted different dates and statutory subsections, this court
reversed the solicitation charge based on Lee "because the information
itself does not make clear that the solicitation charge is separate and
distinct from the solicitation underlying the travel charge." Id. at 1122.
This court noted that
[a]lthough the information supports an interpretation that the
State relied on separate acts of solicitation, it does not
foreclose the possibility that the State relied on the same act
of solicitation. And, bound by Lee, we must not consider that
the evidence adduced at trial supported separate acts of
solicitation for each charge.
Id.
Again in Powers v. State, 289 So. 3d 565, 566 (Fla. 2d DCA 2020),
this court recognized that "[i]n determining whether multiple convictions
based on the same conduct constitute a violation of double jeopardy, an

6
appellate court may consider only the charging document, not the entire
record." Id. (first citing Lee, 258 So. 3d at 1303-04; and then citing
Morejon-Medina, 277 So. 3d at 1121). In Powers, the defendant was
found guilty "of four counts of exploiting his elderly parents in violation
of section 825.103, Florida Statutes (2016)." Id. at 565. Counts one and
two charged Powers under two different subsections of section 825.103,
and counts three and four were "charged similarly and relate[d] to the
conveyance of the same real property." Id. at 566. This court held that
"[b]ecause the information does not reflect that count one is based on
conduct separate and distinct from count two, convictions for both
offenses violate double jeopardy" and that counts three and four also "do
not constitute separate crimes and violate double jeopardy. Id.; see also
Schwoerer v. State, 313 So. 3d 809, 812 (Fla. 2d DCA 2021) (noting that
appellate courts can look only to the charging document in examining a
double jeopardy claim and that any attempt to guess at "the possible
factual bases for the court's verdicts would require us to work backward
from our own sufficiency-of-the-evidence-type review—the precise review
that Lee expressly disapproved"); Neu v. State, 50 Fla. L. Weekly D1997,
D1997-98 (Fla. 6th DCA Sept. 5, 2025) ("Because the information did not
make clear that the State relied on separate solicitation conduct to
charge each offense, punishing Neu for both violates double jeopardy.").
1. Mr. Dominguez's sexual battery convictions on counts I and III
do not violate double jeopardy because the State described
separate acts in each count of the information.
Count I of the amended information alleged that Mr. Dominguez
used his penis to sexually batter the victim while count III alleged that he
used his mouth to sexually batter the victim. Because the facts alleged
in the information reflect that the charges were based on distinct acts,
there is no double jeopardy concern. Cf. State v. Meshell, 2 So. 3d 132,

7
135 (Fla. 2009) ("[S]exual acts of a separate character and type requiring
different elements of proof, such as those proscribed in the sexual
battery statute, are distinct criminal acts."); Duke v. State, 444 So. 2d
492, 494 (Fla. 2d DCA 1984) ("Clearly, penetration of the vagina and
penetration of the anus are distinct acts necessary to complete each
sexual battery."). Because there is no double jeopardy violation
pertaining to counts I and III, we affirm Mr. Dominguez's convictions and
sentences for those offenses.
2. Mr. Dominguez's lewd or lascivious battery convictions on counts
IV and V violate double jeopardy principals because the State
described the same act in each count of the information.
Counts IV and V charged Mr. Dominguez with engaging in lewd or
lascivious battery against the victim on one or more occasions between
July 17, 2016, and December 31, 2020, and the wording in both counts
is identical. Nothing in the charging document suggests that the
convictions on counts IV and V were based on separate conduct. Similar
to Lee, not only did the information fail to allege distinct acts, the jury
instructions and verdict form for counts IV and V were also identical.
Lee, 258 So. 3d at 1304.
It is noteworthy that in Powers, Morejon-Medina, and Schwoerer,
reversal was required on double jeopardy grounds even though the
information in each case charged violations of different statutory
subsections, and in Morejon-Medina, the information alleged different
crimes and different time periods. Here, counts IV and V charged Mr.
Dominguez with committing the same crime against the same victim
during the same time frame. The State's use of identical language for
both counts is even more problematic than the charging documents in
Powers, Morejon-Medina, and Schwoerer.

8
A problem arose at trial due to the use of identical language for
counts IV and V in the jury instructions and the verdict form. During
deliberations, the jury submitted the following question to the judge:
"What are the differences between Count 4 + 5? Same wording, what is
the difference?" In response, the judge directed the jurors to rely on the
evidence they heard during trial and the instructions given to them.
After the jury found Mr. Dominguez guilty on both counts, he was
sentenced to consecutive terms of fifteen years in prison for both.
We do not agree with the dissent that Trappman, 384 So. 3d 742,
supports affirmance of counts IV and V. First, in Trappman, the Florida
Supreme Court did not recede from the rule announced in Lee. Over two
decades ago, the court wrote the following in Puryear v. State, 810 So. 2d
901, 905 (Fla. 2002):
We take this opportunity to expressly state that this Court
does not intentionally overrule itself sub silentio. Where a
court encounters an express holding from this Court on a
specific issue and a subsequent contrary dicta statement on
the same specific issue, the court is to apply our express
holding in the former decision until such time as this Court
recedes from the express holding.
See also F.B. v. State, 852 So. 2d 226, 228-29 (Fla. 2003) (quoting
Puryear, 810 So. 2d at 905). Further, the supreme court expressly
declined to recede from Lee in Dettle v. State, 395 So. 3d 1054, 1061 (Fla.
2024), which was decided after Trappman.
Second, the dissent's reliance on Trappman to conclude that Lee
does not apply to this case is simply not supported by the Trappman
opinion. In that case, Mr. Trappman shoved an officer, and when the
officer shoved him back, Mr. Trappman "responded by siccing a pit bull
on the officer." 384 So. 3d at 745. For the shove, Mr. Trappman was
convicted of battery of a law enforcement officer. Id. For inciting the dog

9
to attack the officer resulting in injury to the officer, he was convicted of
aggravated battery of a law enforcement officer. Id. The question in
Trappman was whether Mr. Trappman's conduct constituted one
criminal act or two successive criminal acts of battery of a law
enforcement officer. Id. at 751. The supreme court concluded that there
was no double jeopardy violation under Blockburger,2 and while the court
discussed the facts leading to Mr. Trappman's convictions, it did so in
the context of analyzing the "distinct acts test" of Blockburger. Id. at 750,
754-56. Unlike here, in Trappman "distinct acts were alleged in the
information thereby avoiding any additional double jeopardy concern."
Trappman v. State, 325 So. 3d 944, 947 (Fla. 1st DCA 2021) (Bilbrey, J.,
concurring). Further, Mr. Trappman never argued that there were
alleged deficiencies in the charging document in his appeal to the First
District or in his brief to the Florida Supreme Court. Trappman, 384 So.
3d at 751 n.4.
Finally, we disagree with the dissent that Lee does not apply to a
double jeopardy analysis when a defendant is charged multiple times
with committing the same act in violation of the same statute during the
same time frame, a quintessential double jeopardy situation. In Lee, the
supreme court noted that it was impossible to know whether the jury
had convicted the defendant of three offenses based on the same act
because "[f]or all we know, jury deliberations ended when they found a
[single] solicitation violation." Lee, 258 So. 3d at 1304 (citing 223 So. 3d
at 373 (Makar, J., concurring in part, dissenting in part)); see also
Schwoerer, 313 So. 3d at 812 (recognizing that when there is a general
verdict on each count, "the reviewing court 'cannot infiltrate the black
box of jury deliberation' to ascertain whether the jury found distinct
2 Blockburger v. United States, 284 U.S. 299 (1932).

10
factual bases for its verdicts on each count"). Here, that concern is even
more evident where the jury specifically asked the trial court, "What are
the differences between Count 4 + 5? Same wording, what is the
difference?"
In a case not addressed by the parties, Pena-Vazquez v. State, 278
So. 3d 755 (Fla. 3d DCA 2019), the court came to a different conclusion
than we do here. We are not persuaded by the court's effort to
distinguish the supreme court's opinion in Lee to reject the double
jeopardy claim raised there. To reach its conclusion, the Pena-Vazquez
court did precisely what Lee prohibits: it reviewed the evidence to
determine that "the jury had no apparent difficulty in differentiating
among the counts." Id. at 761. In contrast, the jury question here
clearly shows that it was having difficulty differentiating counts IV and V.
And any review of the evidence, which would be contrary to the dictates
of Lee, does not let us see into the minds of the jurors to ascertain how
they reached their verdict, particularly in light of the identical language
used in the information, the instructions, and the jury verdict form as to
counts IV and V. As a result, we certify conflict with Pena-Vazquez to the
extent that it holds that Lee does not apply where a defendant is
convicted of committing the same act upon the same victim during the
same time period in violation of the same criminal statute.
Accordingly, we reverse Mr. Dominguez's conviction and sentence
for the offense of lewd or lascivious battery in count V. Mr. Dominguez's
remaining convictions and sentences are affirmed.
Affirmed in part; reversed in part; conflict certified.
MORRIS, J., Concurs.
ATKINSON, J., Concurs in result in part, dissents in part, with opinion.

11
ATKINSON, Judge, concurring in part and dissenting in part.
I concur in the majority's decision to affirm on counts I and III. I
respectfully dissent from the majority regarding counts IV and V.
Because both the charging document and evidence in the record indicate
that the convictions were premised upon acts that occurred separately, I
would affirm the judgment and sentences as to those counts.
At issue in this case is the protection under the double jeopardy
clauses in the United States and Florida constitutions "against multiple
punishments for the same offense." Trappman v. State, 384 So. 3d 742,
747 (Fla. 2024) (quoting Justs. of Bos. Mun. Ct. v. Lydon, 466 U.S. 294,
306–07 (1984)); see also amend. V, U.S. Const ("[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or limb
. . . ."); Art. I, § 9, Fla. Const. ("No person shall . . . be twice put in
jeopardy for the same offense . . . ."). "A defendant is placed in double
jeopardy where based upon the same conduct the defendant is convicted
of two offenses, each of which does not require proof of a different
element." Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006) (citing
Blockburger v. United States, 284 U.S. 299, 304 (1932)). "[M]ost
succinctly put, the offenses must be 'the same in law and in fact.' "
Trappman, 384 So. 3d at 747 (quoting Burton v. United States, 202 U.S.
344, 380 (1906)).
The question of whether offenses are the same "in fact" "addresses
whether conduct transgressing a single prohibition is subject to multiple
punishments" while the question of whether offenses are the same "in
law" addresses "whether a single act transgressing more than one
prohibition may be punished separately." Id. As to the former, "multiple
punishments for violations of a single criminal prohibition are
permissible if the prohibition is aimed at singular acts—as opposed to a

12
continuous offense or course of criminal conduct—and the defendant's
conduct involves separate acts stemming from 'successive impulses.' "
Id. (citing Blockburger, 284 U.S. at 302). And as to the latter, "multiple
punishments for a single act that violates separate criminal prohibitions
are permissible if the separate prohibitions each require proof of a fact
not required to establish a violation of the other prohibition." Id. (citing
Blockburger, 284 U.S. at 304). In short, precedent provides courts with
"two tests to apply," depending on whether the defendant was "convicted
multiple times under the same statute for acts that occurred during the
course of a single criminal episode"—in which the " 'distinct acts' test is
used"—or whether the defendant was "convicted under multiple statutes
for one act"—in which the " 'different elements' test applies." Id. at 748
(quoting Graham v. State, 207 So. 3d 135, 141 (Fla. 2016)).3
Because Mr. Dominguez was convicted twice for the same criminal
prohibition under the same criminal statute—twice for lewd or lascivious
battery under section 800.04(4)(a)1, Florida Statutes (2016)—the double
jeopardy question in this case implicates the "distinct acts" test. Under
that test, "[a]cts are distinct when they result from 'successive impulses'
even when the character of the acts is the same." Trappman, 384 So. 3d
at 754.
3 If a defendant is convicted multiple times of the same prohibition
under the same statute, it is manifestly obvious that the offenses are the
same "in law," as the same elements are at issue for each charge. Thus,
the "distinct acts" test is the applicable standard in that situation to
determine whether the offenses were the same "in fact." And if a
defendant is convicted under multiple statutes for one act, it is likewise
obvious that the offenses are the same "in fact." Thus, the "different
elements" test is the applicable standard in that situation to determine
whether the offenses were the same "in law."

13
In counts IV and V, the State asserted two identical charges, each
of which allege violations "on one or more occasions" of the same
criminal prohibition during exactly the same time period.4 In both
written and oral jury instructions, the trial court provided the jury with
the following admonition: "A separate crime is charged in each count of
the information, and although they have been tried together, each crime
and the evidence applicable to it must be considered separately and a
separate verdict returned as to each."
Mr. Dominguez does not dispute that the evidence at trial
supported the State's theory that the offense in each count was premised
upon a separate act. However, that cannot end this court's inquiry.
Florida Supreme Court precedent indicates that at least under some
circumstances, it does not matter whether evidence at trial supports the
conclusion that the defendant committed distinct acts. See Lee v. State,
258 So. 3d 1297, 1303–04 (Fla. 2018) ("A reviewing court's ability to find
evidence in the record to support multiple convictions is insufficient to
defeat a double jeopardy claim when nothing in the charging document
suggests that the convictions were based on separate conduct.").
Instead, under such circumstances, a reviewing court must confine its
analysis to the charging document. See id. On the other hand, more
recent Florida Supreme Court case law indicates that under some
circumstances, it is necessary for a reviewing court to examine the
evidentiary record to determine whether multiple convictions are
4 Counts IV and V each allege in full as follows:
ARMANDO RUBEN DOMINGUEZ, between the 17th day of
July, 2016, and the 31st day of December, 2020, inclusive,
on one or more occasions, in the County of Hillsborough and
State of Florida, did engage in sexual activity with N.E.H., a
person 12 years of age or older, but less than 16 years of age.

14
premised upon the same conduct or distinct acts for the purpose of
determining whether a double jeopardy violation has occurred. See
Trappman, 384 So. 3d at 745–46 (explaining that its analysis of the
double jeopardy issue would include a "review [of] the facts of the
incident that resulted in the charges against Trappman," an
"examin[ation of] double jeopardy principles," and an "analy[sis of]
Trappman's conduct" before "concluding that separate impulses resulting
in distinct criminal acts justif[ied] Trappman's dual convictions and
sentences"). The question in this case, then, is whether a double
jeopardy analysis of Mr. Dominguez's dual lewd or lascivious battery
convictions should be confined to a review of the charging document or
whether it should include consideration of the evidentiary record.
The Florida Supreme Court's opinion in Lee could arguably be
perceived as applicable to Mr. Dominguez's identical lewd and lascivious
battery charges and mandate that our review for a potential double
jeopardy violation should be confined to the charging document. The
charging document in this case poses an ostensibly similar impediment
to a reviewing court's attempt to determine whether the State alleged
separate conduct in each of the two identical counts—that "[c]onsidering
only the information, it is impossible to know whether the jury convicted
[Mr. Dominguez] . . . based on the same act of [lewd or lascivious
battery]." Lee, 258 So. 3d at 1304. Neither count in the information in
this case includes any specific factual detail that definitively
distinguishes the conduct in count IV from that in count V, both of
which allege a violation of the same criminal statute during the same
time period. However, the similarities between the information in this
case and the information reviewed in Lee end there. Crucial distinctions
between this case and Lee, as well as similarities to the circumstances of

15
Trappman—in which the Florida Supreme Court examined the
evidentiary record to determine whether the charges were premised on
separate conduct—compel the conclusion that the double jeopardy issue
in this case is not governed by Lee and that our review therefore need not
be confined to the charging document but rather should take into
consideration the evidentiary record.
In Lee, the defendant was convicted of three different criminal
offenses: solicitation of a minor, unlawful use of a two-way
communications device, and traveling after solicitation. Id. at 1300. The
supreme court described the issue as whether, under those
circumstances, "the reviewing court should consider only the charging
document or the entire evidentiary record" to "determine whether
multiple convictions are based upon the same conduct." Id. at 1299.
The supreme court relied on its prior decision in Shelley in which it had
concluded that the offenses of solicitation and traveling after solicitation
failed the "different elements" test for purposes of a double jeopardy
analysis. See id. at 1302–03; see also State v. Shelley, 176 So. 3d 914,
919 (Fla. 2015) ("[B]ecause the statutory elements of solicitation are
entirely subsumed by the statutory elements of traveling after
solicitation, the offenses are the same for purposes of the Blockburger
same-elements test codified in section 775.021(4), Florida Statutes.").
But the supreme court in Lee observed that the information "d[id] not
make clear that the State relied on separate conduct to charge the
offenses." Lee, 258 So. 3d at 1304. Characterizing that issue as one of
"constitutional sufficiency" as opposed to "evidentiary sufficiency," id.
(quoting Lee v. State, 223 So. 3d 342, 375 (Fla. 1st DCA 2017) (Makar,
J., concurring in part, dissenting in part)), the supreme court reasoned
that "[a] reviewing court's ability to find evidence in the record to support

16
multiple convictions is insufficient to defeat a double jeopardy claim
when nothing in the charging document suggest[ed] that the convictions
were based on separate conduct," id. at 1303–04. Because the lack of
specificity in the charging document rendered it "impossible to know
whether the jury convicted Lee of all three offenses based on the same
act of solicitation," the supreme court concluded that a double jeopardy
violation had occurred. Id. at 1304.
Subsequently, in Trappman, the supreme court considered whether
the defendant's conduct "constituted one criminal act of battery of a law
enforcement officer, subject to only one punishment, or two successive
criminal acts of battery of a law enforcement officer (the latter of which
was in an aggravated form) subject to two punishments." See Trappman,
384 So. 3d. at 751. In that case, it was likewise undisputed that the
defendant's offenses were functionally the same for purposes of double
jeopardy because the elements of the lesser form of battery were
subsumed with the elements of the greater, aggravated form of battery.
See id. at 750–51; see also § 775.021(4)(b)3 (disallowing separate
convictions and sentences for the same conduct when the statutory
elements of the lesser offense "are subsumed by the greater offense").
The issue in that case was whether the defendant could be convicted
multiple times for the same criminal offense for acts occurring during the
same criminal episode—as opposed to being convicted for conduct
occurring in the same episode that violated different criminal
prohibitions. See Trappman, 384 So. 3d at 754–55. To answer that
question, the supreme court employed the "distinct acts" test, and it
manifestly examined the evidentiary record in doing so. See id. at 746,
754 (recounting how the victim and other officers "testified" "[a]t trial"
and concluding that the defendant's "conduct involved successive

17
impulses to commit a battery"). Based on that evidentiary review, the
court concluded that the defendant's dual convictions for battery did not
constitute a double jeopardy violation because they were predicated on
distinct acts. See id. at 754–56.
The Florida Supreme Court's Trappman opinion confirms that in its
prior Lee decision, the Florida Supreme Court did not establish a
categorical rule that in all instances in which a court must "determine
whether multiple convictions are based on the same conduct," the court
must confine its analysis to the charging document and ignore the
evidentiary record. See Lee, 258 So. 3d at 1299. The two cases can be
reconciled by observation of a salient difference in circumstances. In
Lee, the court noted that it was impossible to determine from the
information whether "the State relied on separate conduct to charge the
offenses" in each of the multiple counts, see id. at 1304, whereas in
Trappman it was clear that the State's theory was that the defendant
"separately committed" offenses premised on "distinct acts," see
Trappman, 384 So. 3d at 746 (quoting Trappman v. State, 325 So. 3d
944, 945–46 (Fla. 1st DCA 2021)); see also Trappman, 325 So. 3d at 947
(Bilbrey, J., concurring) (noting that "the distinct acts were alleged in the
information thereby avoiding any additional double jeopardy concern").
From this observation, it can be deduced that the rule confining a
reviewing court's double jeopardy analysis to the charging document was
applicable in Lee because "nothing in the charging document suggest[ed]
that the convictions were based on separate conduct," Lee, 258 So. 3d at
1303–04, but the rule was inapplicable in Trappman because the
charging document indicated that each count was premised on different
conduct, see Trappman, 384 So. 3d at 746. When confronted with a
charging document that did "not make clear that the State relied on

18
separate conduct to charge the offenses," the court in Lee held that "the
reviewing court should consider only the charging document—not the
entire evidentiary record." Lee, 258 So. 3d at 1304. Lee eschewed as
"insufficient" a "reviewing court's ability to find evidence in the record to
support multiple convictions . . . to defeat a double jeopardy claim when
nothing in the charging document suggests that the convictions were
based on separate conduct." Id. at 1303–04. Thus, the proscription in
Lee, it seems, was not generally applicable. Instead, it narrowly applied
to prohibit review of the evidentiary record when such review would
constitute a post hoc justification of a charging document that would
otherwise violate the double jeopardy clause due to its failure to indicate
that the offending counts were based on separate conduct.
In other words, the Florida Supreme Court in Lee did not speak to
a scenario in which a charging document makes it sufficiently clear that
separate acts have been alleged to support multiple convictions, thus
rendering a reviewing court's examination of the evidentiary record an
appropriate means of determining whether the separate convictions were
supported by evidence of distinct acts. The charging document in this
case meets such a description; like the charging document in Trappman,
the information filed against Mr. Dominguez did not suffer from the same
deficiency identified in Lee. In Lee, the information alleged one violation
of each of three different criminal prohibitions during the same time
period, with each violation in a single, separate count. See id. at 1300
(providing that Mr. Lee was charged with "one count" of each of the three
offenses). This was also true of the conflict cases that Lee examined,
which likewise involved charging documents that alleged the defendant
violated multiple criminal statutes during the same time period,
asserting one count for each violation. See id. at 1303; Mizner v. State,

19
154 So. 3d 391, 395 (Fla. 2d DCA 2014); Holt v. State, 173 So. 3d 1079,
1081 (Fla. 5th DCA 2015). In this case, by contrast, the information
alleged multiple counts of the same offense—that is, each of the two
counts alleged "one or more" violations of the same criminal prohibition
under the same statute—during the same time period. In the scenario
examined by Lee, it is not possible from the charging document to
determine whether the State's theory relies on separate conduct to
support each of the multiple crimes charged. See Lee, 258 So. 3d at
1304. In comparison, the charging document in this case can only be
reasonably read as alleging separate conduct to support each of the two
commissions of the same crime. Reading the charging document
otherwise would require an unreasonable presumption either that the
State duplicated a count by mistake or that the information is a
nonsensical absurdity.
In a similar case, the Third District rejected an argument that a
charging document was "fundamentally defective where it alleged two
counts of violating the same statute, using identical language and relying
upon a two-year range of dates for the commission of both offenses." Cf.
Pena-Vazquez v. State, 278 So. 3d 755, 758 (Fla. 3d DCA 2019). While
"use[] [of] identical language in" two separate counts "may not represent
a best practice, this alone does not render the counts defective or the
convictions improper." Id. ("Reduced to its essence, this aspect of Pena-
Vazquez's claim is the bare assertion that the Amended Information is
defective because it failed to allege a specific date for the criminal act
alleged in each count, and instead alleged a range of dates.").
To the extent Pena-Vazquez asserts the jury may have
improperly relied upon proof of one act to find him guilty of
two counts of lewd or lascivious molestation, we hold that this
is a question of "evidentiary sufficiency" rather than

20
"constitutional sufficiency," and may therefore be resolved by
reviewing the trial record rather than limiting our review to
the charging document. In this respect, the instant case is
distinguishable from the Florida Supreme Court's recent
decisions in Lee v. State, 258 So. 3d 1297 (Fla. 2018), and
State v. Shelley, 176 So. 3d 914 (Fla. 2015).
In Shelley, 176 So. 3d at 919, the question presented
was whether "dual convictions for solicitation and traveling
after solicitation based upon the same conduct" violated
double jeopardy. . . .
In Lee, 258 So. 3d at 1304, the Florida Supreme Court
elaborated on the proper scope of review to be undertaken by
an appellate court in analyzing the type of double jeopardy
claim presented in Shelley, 176 So. 3d at 919. In applying
the Blockburger "same elements" test to determine the
permissibility of multiple convictions for separate crimes
based upon the same conduct, the Court held "the reviewing
court should consider only the charging document—not the
entire evidentiary record." Lee, 258 So. 3d at 1304.
Here, by contrast, Pena-Vazquez was not charged with
or convicted of violating two separate criminal statutes (one of
which is subsumed within the other) based upon the same
conduct. Instead, Counts Two and Six allege that Pena-
Vazquez, over the course of the same two-year period,
engaged in acts upon the same victim that violated the exact
same criminal statute.
At no time did the State allege or contend that Pena-
Vazquez committed these two offenses by engaging in a single
act.
Id. at 760–61 (footnotes omitted) (quoting State v. Shelley, 176 So. 3d
914, 919 (Fla. 2015) and Lee v. State, 258 So. 3d 1297, 1304 (Fla.
2018)).5
5 A distinction between this case and Pena-Vazquez is that in this
case Dominguez moved to dismiss the information and for a statement of
particulars, whereas in Pena-Vazquez the defendant failed to do so. See
Pena-Vazquez, 278 So. 3d at 760. However, that distinction is not
pertinent. Despite Dominguez's motions filed in the trial court, on
appeal he waived the issue of a defective charging document—one that is
distinct from a double jeopardy claim, the latter of which can be raised at

21
In other words, Lee is distinct because the charging document itself
posed the possibility that in that case the State charged the defendants
with committing the offenses based on the same conduct. It could not be
ascertained from the face of the information whether the State charged
the defendant with violating the various criminal statutes based on the
same conduct or if each count was premised on conduct distinct from
the other counts. If the State's theory was the former, then the double
jeopardy clause would prohibit the multiple convictions because the
offenses had already been determined to violate the "different elements"
test for purposes of a double jeopardy analysis. See Trappman, 384 So.
3d at 747 ("[M]ultiple punishments for a single act that violates separate
criminal prohibitions are permissible [only] if the separate prohibitions
each require proof of a fact not required to establish a violation of the
other prohibition."). And it would be eminently reasonable to infer a
possibility that the acts upon which each count was based were not
distinct in Lee because they were alleged to have been committed during
the same time period and constituted a violation of all three offenses. It
was in that context that the supreme court concluded that the
determination of whether multiple convictions for violations of distinct
any time regardless of preservation and is not subject to waiver. Cf. id.
("By failing to seek a statement of particulars to factually differentiate
between the identically-worded counts, or otherwise narrow the
timeframe for each count, and by failing to otherwise challenge the
allegedly defective or insufficient nature of the charging document, Pena-
Vazquez has waived that issue and may not raise it for the first time on
appeal." (emphasis added)); Vizcon v. State, 771 So. 2d 3, 6 n.4 (Fla. 3d
DCA 2000) (concluding to a challenge to nearly "identical" but
chronologically overlapping counts did "not actually present a valid
double jeopardy claim, but rather, at most, one of a defective
information," an issue that "is subject to waiver by the failure to assert it
in a timely attack on the information itself").

22
criminal prohibitions under different criminal statutes violate double
jeopardy should not take into consideration the evidence adduced at trial
but rather should be confined to a review of the charging document—a
holding it described in case-specific terms that included the details of the
multiple criminal prohibitions charged:
We hold that[] to determine whether multiple convictions of
solicitation of a minor, unlawful use of a two-way
communications device, and traveling after solicitation of a
minor are based upon the same conduct for purposes of
double jeopardy, the reviewing court should consider only the
charging document—not the entire evidentiary record.
Lee, 258 So. 3d at 1304.
Although the information in this case alleges that Mr. Dominguez's
conduct occurred during the same time period (one that notably spanned
more than four years),6 the information asserts that he committed
multiple violations of the same criminal statute, each of which indicates
that the defendant violated the same prohibition on one or more
occasions. Thus, the pertinent question was "whether conduct
transgressing a single prohibition is subject to multiple punishments,"
that is, whether the offenses were the same "in fact." See Trappman, 384
So. 3d at 747. And that question could be answered by ascertaining
whether the conduct underlying the separate charges "involve[d] separate
acts." See id. That answer is readily apparent from the information filed
6 Because the charging document brought separate counts, each
alleging at least one violation of the same criminal prohibition, this case
is different than Lee because it is clear that the separate counts are
premised on separate conduct—regardless of the duration of the alleged
time period. However, the lengthy duration of the time period specified
in the information only serves to underscore that the charges were based
on separate conduct and to undermine any reading of the information
that suggests the State might have premised both counts on the same
act or episode.

23
against Mr. Dominguez because the only explanation for the multiple
counts alleging violations of the same criminal prohibition is that the
State was alleging he committed the crime twice. See id. at 747
("[M]ultiple punishments for violations of a single criminal prohibition are
permissible if the prohibition is aimed at singular acts—as opposed to a
continuous offense or course of criminal conduct—and the defendant's
conduct involves separate acts stemming from 'successive impulses.' "
(quoting Blockburger, 284 U.S. at 302)). Stated otherwise, the only way
to read the information is to infer that it alleges a violation of the same
criminal prohibition on more than one occasion. Similarly, in Trappman,
the information, albeit for different reasons, evidenced the State's theory
that the defendant engaged in distinct conduct for each count. See id. at
746 (recounting that "[Trappman] had initially committed battery by
shoving Sergeant Bird, and that he separately committed aggravated
battery by subsequently 'siccing' the dog on Bird" (alteration in original)
(quoting Trappman, 325 So. 3d at 945)). And like Trappman, the
charging document in this case is similarly free from the deficiency
identified in Lee—it does not lack clarity "that the State relied on
separate conduct to charge the offenses." See Lee, 258 So. 3d at 1304.
In Lee, because it was impossible to tell whether the information was
alleging more than one act, it was impossible to determine from the
charging document whether the State was premising each count on "a
single act transgressing more than one prohibition." See Trappman, 384
So. 3d at 747. But because in this case the State alleged that Mr.
Dominguez violated the same criminal prohibition in multiple counts,
each of which alleged that he committed a violation on at least one
occasion during the specified time period, the information in this case
can only be reasonably understood to be alleging that each count is

24
premised on a distinct offense that occurred on a different "occasion"—
that is, each count is premised on separate conduct.
Thus, it is sufficiently clear from the information that the State
charged multiple violations of the same criminal statute based on
separate acts committed by Mr. Dominguez. Cf. Batchelor v. State, 193
So. 3d 1054, 1058 (Fla. 2d DCA 2016) ("One can imagine a scenario
where convictions for both traveling to meet a minor and the unlawful
use of a two-way communications device could be sustained. But such a
scenario would require a charging document—unlike the one filed in this
case—that distinguished the two acts as occurring separately, and that
facts were adduced at trial to prove that the offenses were indeed
committed as separate and distinct acts."). This, of course, is not to say
that the State necessarily proved that each count was based on a
separate offense for the purpose of avoiding a double jeopardy violation,
but that is a separate question. And in light of the foregoing, it is
apparent that under the circumstances of this appeal, this court need
not confine its review to the charging document in order to answer that
question. In scenarios like Trappman and this case, it is permissible—
nay, necessary—for the reviewing court to look beyond the charging
document and examine the evidentiary record to determine whether the
convictions are based on distinct acts. Having already determined that
the elements of the offenses at issue are the same or functionally the
same for purposes of a double jeopardy analysis, see § 775.021(4)
(explaining in subsection (a) when offenses "are separate" and explaining
in subsection (b) exceptions to the rule), the remaining question is
whether the offenses are also the same "in fact," Trappman, 384 So. 3d at
747.

25
Resolving whether two offenses are factually the same necessarily
requires an examination of the circumstances of each case. Indeed,
Trappman recognized both that the "touchstone of the analysis" is
whether there were successive impulses to violate the criminal statute
and also that it may be relevant for courts to consider "whether there
was a separation of time, place, or circumstances" between the acts at
issue. Id. at 754 ("Although a variation in the manner in which the
prohibition is violated is not necessary to establish the existence of
distinct acts, such variation may signal that the defendant's wrongdoing
involves 'successive impulses' to violate the same prohibition and thus
results in distinct acts warranting separate punishment for each act.").
That inquiry makes little sense if confined to a review of the charging
document. Cf. Hayes v. State, 803 So. 2d 695, 705 (Fla. 2001) ("We
recognize that in determining whether multiple convictions for robberies
or thefts or both are predicated on distinct and independent criminal
acts or a single criminal act, it is difficult to formulate a bright-line rule
because the determination is often fact-specific."). Rather, the inquiry is
manifestly conducive to an examination of the evidentiary record.
According to the record of the trial in this case and by concession of the
parties,7 it can be concluded that Mr. Dominguez's convictions on counts
IV and V were supported by evidence of distinct acts. See Pena-Vazquez,
278 So. 3d at 762 ("Here, the evidence presented at trial differentiated
the acts of lewd or lascivious molestation, in terms of time, place and
circumstance, and established by competent substantial evidence that
Pena-Vazquez engaged in distinct acts of lewd or lascivious molestation
7 On appeal, Dominguez does not dispute that the "evidence"
adduced at trial "reflect[s] distinct offenses."

26
on C.P., on separate dates and under identifiably different circumstances
during the two-year time period alleged in the Amended Information.").
I conclude, as explained above, that it is most reasonable to
presume that the counts as stated in the information in this case are
based on separate conduct because the information read otherwise
would presume a scrivener's error of a duplicated count or that the
information merely makes no sense. I can perceive of no reason for a
reviewing court to make such an unreasonable presumption.
However, I do not discount the possibility that reasonable jurists
might conclude that the information as to counts IV and V could be
understood to contain a distinct deficiency of the type that was identified
in Lee. A reviewing court might be troubled by the mere possibility that
in each of the two lewd and lascivious battery counts, the State could
have charged Mr. Dominguez for two violations of the same criminal
statute based on the same conduct on the same occasion—that is, that
the State could have charged him twice for one commission of the crime
that was not premised on distinct acts. I consider that to be an
unreasonable reading of the information as to those two counts.
Nonetheless, whether a charging document like the one in this case
permits a reviewing court to look beyond it to assess whether evidence
supports multiple convictions based on distinct conduct is a challenging
question not neatly resolved by existing Florida Supreme Court case law.
Consequently, I would certify the following questions of great public
importance to the Florida Supreme Court:
DOES THE RULE ESTABLISHED IN LEE V. STATE, 258 SO.
3D 1297 (FLA. 2018)—THAT REVIEWING COURTS MUST
DETERMINE WHETHER MULTIPLE CONVICTIONS ARE
BASED ON THE SAME CONDUCT BY CONSIDERING ONLY
THE CHARGING DOCUMENT—APPLY WHEN THE STATE
CHARGES A DEFENDANT IN SEPARATE COUNTS WITH

27
MULTIPLE VIOLATIONS OF THE SAME CRIMINAL STATUTE,
THAT IS, MULTIPLE VIOLATIONS OF THE SAME CRIMINAL
PROHIBITION?
FOR PURPOSES OF A DOUBLE JEOPARDY CLAIM, MUST
THE STATE ALLEGE FACTUAL DETAIL IN THE
INFORMATION SUFFICIENT TO INDICATE THAT MULTIPLE
VIOLATIONS OF THE SAME CRIMINAL STATUTE ARE
BASED ON DISTINCT ACTS, OR DO IDENTICAL COUNTS
ALLEGING VIOLATIONS OF THE SAME CRIMINAL
PROHBITION IN THE SAME STATUTE INDICATE WITH
SUFFICIENT CLARITY THAT THE INDIVIDUAL COUNTS ARE
EACH PREMISED ON SEPARATE CONDUCT SUCH THAT A
REVIEWING COURT IS PERMITTED TO EXAMINE THE
EVIDENTIARY RECORD TO DETERMINE WHETHER IT
SUPPORTS THAT THE DISTINCT ACTS TEST HAS BEEN
SATISFIED?
Opinion subject to revision prior to official publication.