State of Florida v. Brian Mitchell Lee
2017 Fla. App. LEXIS 7886
| Fla. Dist. Ct. App. | 2017Background
- Lee placed a Craigslist ad seeking a male under 25; an undercover investigator posing as a 14‑year‑old (“Matt”) responded and informed Lee of his age.
- Over an 11‑day period (Dec. 22, 2013–Jan. 1, 2014) Lee exchanged multiple electronic messages soliciting sexual acts; he traveled on Jan. 2, 2014 to meet the purported minor and was arrested.
- Lee was charged with: (1) traveling to meet a minor after solicitation, (2) unlawful use of a two‑way communications device to facilitate a felony, and (3) using a computer to solicit a child.
- Lee moved to dismiss arguing double jeopardy because solicitation was subsumed within traveling and the communications‑use offense overlapped with traveling; the trial court denied the motion and a jury convicted him on all counts.
- The trial court imposed a downward departure sentence (no prison; community control and probation) relying on a statutory mental‑health mitigator and several non‑statutory mitigators; the State appealed the downward departure.
- The en banc court affirmed the convictions (finding multiple, distinct solicitations/events) but vacated the sentences and remanded for resentencing because the downward departure lacked adequate evidentiary and legal support.
Issues
| Issue | Lee's Argument | State's Argument | Held |
|---|---|---|---|
| Whether multiple convictions violated double jeopardy (multiple punishments) | Convictions for traveling, communications‑use, and solicitation stemmed from the same conduct/episode and are duplicative | Evidence showed multiple solicitations across time/locations; convictions rested on distinct acts so no double jeopardy | Affirmed convictions: record showed multiple criminal episodes and at least five distinct solicitations, so no double jeopardy; no need to reach Blockburger step |
| Applicability of Shelley and Hamilton to bar convictions | Shelley/Hamilton require reversal because solicitation and communications‑use are subsumed by traveling | Shelley/Hamilton apply only when offenses are based on the same single act; here convictions derive from distinct acts/episodes | Shelley and Hamilton do not control; their holdings limited to cases where offenses are based on the same singular solicitation |
| Burden of proof on double jeopardy challenges (pretrial) | Trial court should have dismissed counts pretrial; once prima facie shown, burden shifted to State to show separateness | Defendant bears burden to demonstrate double jeopardy on appeal; pretrial dismissal is not the correct remedy for multiple‑punishment claims | Court reiterates: defendant bears burden to show double jeopardy on appeal; multiple‑punishment claims generally resolved after conviction/sentencing, not by pretrial dismissal |
| Validity of downward departure sentence | Trial court properly considered statutory and non‑statutory mitigators (depression, rehabilitation, employment, family support) | Statutory mitigator not supported by competent substantial evidence; non‑statutory mitigators (rehabilitation, employment, family support, no priors) are impermissible bases for departure | Vacated and remanded for resentencing: no competent evidence that statutory mitigator applied; relied non‑statutory factors are not valid reasons for departure |
Key Cases Cited
- State v. Shelley, 176 So.3d 914 (Fla. 2015) (solicitation elements are subsumed by traveling after solicitation when based on the same conduct)
- Hamilton v. State, 163 So.3d 1277 (Fla. 1st DCA 2015) (unlawful use of a two‑way communications device may be subsumed by traveling after solicitation when based on the same criminal episode)
- State v. Paul, 934 So.2d 1167 (Fla. 2006) (three‑step test for multiple punishments: same episode, distinct acts, then Blockburger/same‑elements)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (same‑elements test to determine whether offenses are separate for punishment)
- Ohio v. Johnson, 467 U.S. 493 (U.S. 1984) (distinguishing multiple prosecutions from multiple punishments; no pretrial prohibition on charging overlapping offenses)
- Jackson v. State, 64 So.3d 90 (Fla. 2011) (standard for resentencing when an improper downward departure is vacated)