Mizner v. State
154 So. 3d 391
| Fla. Dist. Ct. App. | 2014Background
- Undercover FDLE cybercrime agents ran a "sexual mentor" sting on Craigslist posing as a 35‑year‑old mother "Cindy" with a 10‑year‑old daughter "Sabrina."
- Stephen Mizner (41) responded and communicated with "Cindy," agreed to be a sexual mentor for the child, and arranged to meet at a Sarasota restaurant so "Cindy" could drive him to Zolfo Springs to pick up the alleged child.
- Mizner arrived at the appointed time carrying candy for the child and condoms; he was arrested in the restaurant parking lot before any contact with the child could occur.
- A jury convicted Mizner on four counts: soliciting a parent to consent to sex with a minor (Count 1), traveling to meet a minor (Count 2), unlawful use of a two‑way communications device (Count 3), and attempted sexual battery on a child under 12 (Count 4). He was sentenced on all counts and designated a sexual predator.
- On appeal Mizner raised sufficiency of the evidence for attempt (Count 4), requested a special jury instruction (moot after disposition), and argued double jeopardy as to Counts 1 and 3 being subsumed by Count 2; he also argued objective entrapment (outrageous conduct).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Mizner) | Held |
|---|---|---|---|
| Sufficiency of evidence for attempt to commit sexual battery (Count 4) | Evidence showed Mizner took steps toward commission by meeting and bringing condoms/candy | Acts were mere preparation; meeting was conditional and too remote in time/distance to be an overt act | Reversed: conduct was mere preparation; acquittal on Count 4 and discharge ordered |
| Double jeopardy: whether soliciting (Count 1) is subsumed by traveling (Count 2) | State conceded elements overlap but argued separate episodes could exist | Soliciting is subsumed by traveling when charged/proved in same episode | Vacated convictions/sentences for Counts 1 and 3 for double jeopardy; certified conflict with Murphy |
| Double jeopardy: unlawful use of two‑way communications device (Count 3) | Device use element subsumed within soliciting/traveling but State argued multiple uses across days | Single charging period (Nov 1–4) treated as one episode; offense subsumed | Vacated conviction/sentence for Count 3 |
| Objective entrapment (outrageous government conduct) | Government conduct was proper undercover investigation | Mizner argued conduct was so outrageous as to violate due process | Rejected: no objective entrapment found; issue lacked merit |
Key Cases Cited
- Vroom v. State, 48 So. 3d 82 (Fla. 2d DCA 2010) (scoresheet/resentencing principles)
- Shelley v. State, 134 So. 3d 1138 (Fla. 2d DCA 2014) (soliciting subsumed by traveling when same episode; certified conflict)
- State v. Murphy, 124 So. 3d 323 (Fla. 1st DCA 2013) (contrasting First District holding on legislative intent re: multiple punishments)
- Coker v. State, 452 So. 2d 1135 (Fla. 2d DCA 1984) (distinguishing mere preparation from overt act for attempt)
- Hudson v. State, 745 So. 2d 997 (Fla. 2d DCA 1999) (noting case‑specific line between preparation and overt act)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (double jeopardy/elemental test)