A defendant convicted on several counts under one statute, all worded the same, cannot rely on the Lee charging-document rule to win a double jeopardy claim if the trial record shows each count rests on a separate act. That is the First District’s holding in Crowley v. State, No. 1D2025-1776, decided October 28, 2026, which certified conflict with the Second District’s decision in Dominguez v. State. Judge Neff wrote for the court, joined by Chief Judge Osterhaus. Judge Bilbrey concurred in part and dissented in part.
The convictions. A Bay County jury convicted Harlin Richard Crowley of three counts of sexual battery on a person under twelve, seven counts of lewd or lascivious molestation and fourteen counts of promoting a sexual performance by a child, all tied to video and photographic evidence. The sentences were ten consecutive life terms plus consecutive sex offender probation. The court reached two main issues: sufficiency on three promotion counts, and double jeopardy.
Sufficiency. The court reversed counts XXI and XXIV and directed judgments of acquittal. Both depended on a shared phone. As to count XXI, a cached image, the State did not establish who used the phone when the image was last viewed or who created it. As to count XXIV, a screenshot of a video call in which Crowley did not appear, nothing showed he was on the call or made the screenshot. Both required inference stacked on inference. The court affirmed count XXII, where the image sat in Crowley’s own Google account, carried GPS data near a residence where he lived, and matched other evidence tied to him.
The Lee charging-document rule. Crowley pointed to Lee v. State, 258 So. 3d 1297 (Fla. 2018), under which a reviewing court looks only at the charging document to decide whether multiple convictions rest on the same conduct. The First District read Lee as limited to offenses where one is subsumed within another, so that a verdict on the greater offense necessarily includes the lesser and the record cannot show whether the jury found a separate act. It said same-statute counts differ because each requires its own elements to be found from its own evidence. It agreed with Pena-Vazquez v. State (Fla. 3d DCA 2019) and declined to follow Dominguez to the extent Dominguez held otherwise.
On this record the court found each challenged pairing rested on separately identified files with their own hash values and different content, that the prosecutor matched exhibits to counts in opening, and that the jury asked only to review exhibits by number. It found no double jeopardy violation on the remaining counts.
The partial dissent. Judge Bilbrey agreed with the sufficiency rulings. He read Lee and Dettle v. State (Fla. 2024) to apply to any two convictions resting on the same alleged conduct, and he would have followed Dominguez. He concurred in certifying conflict.
What this does and does not mean. Conflict is certified, so the question is open statewide. The holding is tied to a record with differentiated exhibits and “no dispute about which evidence corresponds to which count.” The opinion does not say what would happen on a record without that. On remand the trial court is to enter acquittals on counts XXI and XXIV and correct the judgment and sentence accordingly; the opinion does not discuss the effect on the remaining sentences. The opinion is not final until any timely rehearing motion is resolved.
Related decisions: Can you amend a Florida Rule 3.850 motion after the court's 60 days? Judge Winokur says the First DCA's Daise rule cuts that right off too soon Can a Florida judge preside over a death penalty case if she once worked at the defendant's appeal firm? Yes, on these facts, the Florida Supreme Court says
Read the opinion (PDF): Download the opinion (PDF)
Source: Crowley v. State, No. 1D2025-1776 (Fla. 1st DCA Oct. 28, 2026) (Bilbrey, J., concurring in part and dissenting in part). This article is general information, not legal advice.
Also on Florida Lawyer News: Do Identically Worded Counts Under the Same Statute Violate Double Jeopardy? Not When the Record Shows Separate Acts, the First DCA Held