When a defendant is convicted of identically worded counts under the same statute, a Florida appellate court may look to the trial record, not only the charging document, to decide whether the counts rest on separate acts. The First District Court of Appeal so held on October 28, 2026, in Crowley v. State, No. 1D2025-1776, in a ruling on identically worded counts under the same statute that also reversed two convictions for insufficient evidence. Judge Neff wrote the opinion. Chief Judge Osterhaus concurred. Judge Bilbrey concurred in part and dissented in part.
The case
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. The charges rested on video and photographic evidence covering August 2021 to November 2023. He received ten consecutive life sentences on the battery and molestation counts, followed by consecutive terms of sex offender probation on the rest. The court addressed four issues and said two of them, the denial of a motion to depose the minor victim and the admission of rebuttal evidence, required no discussion.
Two promotion counts reversed
The court reversed counts XXI and XXIV for insufficient evidence. Count XXI rested on a cached image on a shared phone. The record showed only that the image was last viewed on the day of Crowley’s arrest, the phone’s users alternated, and the State did not establish who operated it or who created the image. The court held that the jury would have had to stack too many inferences, “each lacking independent support.” Count XXIV rested on a screenshot of a video call on the same phone. Crowley was not depicted, and nothing showed he took part in the call or created the screenshot.
The court affirmed count XXII. That image was uploaded to Crowley’s own Google account, carried GPS data placing it within 300 feet of a residence where he lived, showed wood paneling matching other pictures linked to him, and came from a phone tied to him through another exhibit. The court called the one remaining inference “a single step drawn from three converging, independently corroborated facts.”
Identically worded counts under the same statute
Crowley argued that counts charged in identical language on the same dates made it “impossible to know” whether the jury convicted on the same act twice, relying on Lee v. State, 258 So. 3d 1297 (Fla. 2018). The court described Florida law as unsettled and noted a split between Pena-Vazquez v. State (Fla. 3d DCA 2019) and Dominguez v. State (Fla. 2d DCA 2026). It sided with the Third District. It read Lee as a case about offenses where one is subsumed within another, so that a verdict on the greater offense necessarily includes the lesser. In that setting the record cannot reliably show whether the jury found a separate act, which is why Lee confined review to the charging document.
Same-statute counts, the court reasoned, do not have that problem, because each count requires the jury to find its own elements from its own evidence. Such a claim is therefore one of “evidentiary sufficiency” rather than “constitutional sufficiency.” Applying that approach, the court found that each challenged pairing rested on separately identified files, each with its own hash value, and that the exhibits depicted different conduct. It also relied on the prosecutor’s opening statement matching exhibits to counts and on the jury’s request to review exhibits by number. It rejected the double jeopardy claim on all remaining counts.
The partial dissent
Judge Bilbrey agreed with the sufficiency rulings but did not read Lee as narrowly. Citing Lee and Dettle v. State (Fla. 2024), he wrote that the rule applies to any two convictions resting on the same alleged conduct, and that he would follow Dominguez. He agreed that conflict should be certified.
What this does and does not mean
The court certified conflict with Dominguez “to the extent it holds that Lee’s charging-document rule governs” same-statute, same-victim, same-timeframe claims “without regard to the trial record.” The question is not resolved statewide. The ruling rests on a record in which, in the court’s words, there was “no dispute about which evidence corresponds to which count.” The court did not say how it would treat a record without differentiated exhibits. It also noted nothing showed Crowley sought a statement of particulars. Its footnote says its decision is not at odds with Hooks v. State, which involved different statutes. The opinion is not final until any timely motion under Florida Rules of Appellate Procedure 9.330 or 9.331 is resolved.
One oddity
The majority’s chart of paired counts lists no pairing for count XXIII, although the court’s description of the challenge names it. Judge Bilbrey’s footnote lists some pairings differently from the chart. The opinion does not explain the differences.
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Read the opinion (PDF): Download the opinion (PDF)
Also on tagerlaw.com: Does the Lee Charging-Document Rule Apply When the Same Statute Is Charged Twice? The First DCA Says No and Certifies Conflict
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.