BOARDWINE
v.
STATE OF FLORIDA

Fla. 2d DCA | 2026-01-16
No. 2024-1353
Fernandez, J., Kelly, J., Rothstein-Youakim, J., Labrit, J.
2026 FL 556 Florida District Court of Appeal, Second District (2026)

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Holding

A conviction for unlawful use of a two-way communication device must be vacated as violating double jeopardy when the defendant is also convicted of using computer services or devices to solicit illegal acts based on the same conduct.

Headnotes

[1] A defendant cannot be convicted of both unlawful use of a two-way communication device and use of computer services or devices to solicit illegal acts when both convictio…

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Key Quotes

“we are compelled to vacate Mr. Boardwine's judgment and sentence for unlawful use of a two-way communication device because it violates the prohibition against double jeopardy”

Court's statement of the basis for vacating one of the two convictions
Facts & Procedural History

Gary Boardwine was convicted by jury of both use of computer services or devices to solicit certain illegal acts and unlawful use of a two-way communi…

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Topics
Double Jeopardy Prohibition

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Per_curiam
Per Curiam

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

KELLY, ROTHSTEIN-YOUAKIM, and LABRIT, JJ., Concur.

Opinion subject to revision prior to official publication.

Footnotes
2 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.

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