199 So. 3d 1068
Fla. Dist. Ct. App.2016Background
- Law enforcement posed as a mother on Craigslist seeking sexual activity involving her 14-year-old daughter; Honaker responded and exchanged texts/emails over several days.
- Honaker traveled to a location provided by officers on February 25, 2012, and was arrested upon arrival.
- The State charged Honaker with: (1) unlawful use of a two-way communications device (§ 934.215), (2) solicitation (use of a computer to solicit a parent to consent to sexual activity with a child, § 847.0135(3)(b)), and (3) traveling after solicitation (traveling to meet a minor to engage in unlawful sexual activity, § 847.0135(4)(b)).
- A jury convicted him on all three counts; the trial court imposed concurrent 60-month sentences. Direct appeal was previously affirmed.
- Honaker filed a Rule 3.850 postconviction motion arguing dual convictions for solicitation and traveling violated double jeopardy; the trial court denied relief and Honaker appealed belatedly.
- The Fifth District found that the solicitation and two-way-communications convictions overlap with the traveling-after-solicitation offense because the charges arose from the same conduct, creating double jeopardy problems requiring vacatur of the lesser offenses and resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dual convictions for solicitation (§ 847.0135(3)(b)) and traveling after solicitation (§ 847.0135(4)(b)) violate double jeopardy | Honaker: dual convictions based on the same conduct violate the Blockburger/same-elements test and legislative intent | State: convictions can stand (previous cases distinguished where multiple solicitations occurred) | Court: Vacate solicitation conviction when both arise from the same conduct; double jeopardy bars separate convictions (following State v. Shelley) |
| Whether dual convictions for unlawful use of a two-way communications device (§ 934.215) and traveling after solicitation violate double jeopardy | Honaker raised only the first issue, but the court considered whether two-way-communications conviction duplicated traveling offense | State did not preserve argument; trial court denied relief below | Court (sua sponte): Unlawful use of a two-way device is subsumed by traveling-after-solicitation when based on same conduct; vacate the two-way-communications conviction as lesser offense and remand for resentencing |
Key Cases Cited
- Pinder v. State, 128 So. 3d 141 (Fla. 5th DCA 2013) (analyzing multiple solicitations vs single solicitation/travel)
- State v. Shelley, 176 So. 3d 914 (Fla. 2015) (solicitation elements subsumed by traveling-after-solicitation; double jeopardy bars separate convictions)
- Holt v. State, 173 So. 3d 1079 (Fla. 5th DCA 2015) (two-way-communications conviction duplicates traveling-after-solicitation where based on same conduct)
- Hamilton v. State, 163 So. 3d 1277 (Fla. 1st DCA 2015) (similar holding on two-way-communications duplication)
- Stapler v. State, 190 So. 3d 162 (Fla. 5th DCA 2016) (double jeopardy prohibits dual convictions for single solicitation and travel counts)
- Agama v. State, 181 So. 3d 571 (Fla. 2d DCA 2015) (holding on single-count solicitation and traveling double jeopardy)
- Bailey v. State, 21 So. 3d 147 (Fla. 5th DCA 2009) (double jeopardy can be fundamental error)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (same-elements test for separate offenses)
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973) (court may address fundamental error sua sponte)