Mahar v. State
190 So. 3d 1123
| Fla. Dist. Ct. App. | 2016Background
- Tyler Mahar pleaded no contest to: (1) using a computer to solicit a person to commit a sex act on a child (section 847.1085(3)(b)) and (2) traveling to meet a person to solicit or entice a minor to commit a sex act (section 847.0135(4)(b)); he also pleaded to possession of cannabis (not at issue).
- Mahar received downward-departure sentences for each sex offense: one year community control followed by four years sex-offender probation.
- Facts in the charging information and motion to dismiss showed online communications with undercover officers (posing as an aunt) occurred over March 21–22; Mahar learned the girl’s age, arranged to meet, traveled the next day, and was arrested on arrival.
- This court previously decided Shelley v. State (2d DCA) holding solicitation by computer is subsumed by traveling if based on the same conduct; the Florida Supreme Court later affirmed that holding in State v. Shelley.
- Mahar entered his plea after the DCA Shelley decision but before the Florida Supreme Court’s opinion; his attorney did not raise double jeopardy at plea or reserve it for appeal. The court reviewed the issue as fundamental error because the record plainly showed it and Mahar pleaded open.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dual convictions for computer solicitation and traveling to meet a minor violate double jeopardy when based on the same episode | State: temporal gap between communications and travel allows separate convictions | Mahar: solicitation and travel arise from same course of conduct and thus are duplicative | Court: Convictions duplicate; solicitation subsumed by traveling; double jeopardy bars dual convictions |
| Whether the double jeopardy issue is forfeited because defense failed to raise it before plea | State: defense forfeited by not preserving issue | Mahar: double jeopardy is fundamental error and reviewable despite lack of preservation | Court: Reviewable—fundamental error where plea was open, record shows error, and defendant did not waive issue |
Key Cases Cited
- State v. Shelley, 176 So.3d 914 (Fla. 2015) (Florida Supreme Court holding solicitation by computer is subsumed by traveling after solicitation when based on the same conduct)
- Shelley v. State, 134 So.3d 1138 (Fla. 2d DCA 2014) (DCA decision affirmed by the Florida Supreme Court on the subsumption/double jeopardy issue)
- Meythaler v. State, 175 So.3d 918 (Fla. 2d DCA 2015) (double jeopardy is fundamental error when an open plea and the record plainly show the error)
- Bailey v. State, 21 So.3d 147 (Fla. 5th DCA 2009) (discussing preservation and reviewability of double jeopardy claims)