247 So. 3d 663
Fla. Dist. Ct. App.2018Background
- Sherman was charged and convicted of two counts arising from interactions with an online decoy: (1) solicitation via computer in violation of section 847.0135(3)(a) and (2) traveling after solicitation to meet a minor in violation of section 847.0135(4)(a).
- The First DCA previously affirmed Sherman’s convictions, but the Florida Supreme Court quashed and remanded in light of State v. Shelley.
- On remand the First DCA again affirmed, finding the record showed multiple, discrete solicitations (via two separate email accounts) before Sherman drove to meet the decoy.
- The court applied its en banc decision in Lee v. State to permit consideration of uncharged but recorded solicitations in the record to avoid a double-jeopardy problem.
- The majority held that multiple solicitations supported separate convictions for solicitation and traveling after solicitation because the convictions were not based on the same single act.
- Judge Makar concurred in result dubitante, arguing Lee conflicts with Shelley and that the verdict forms and instructions failed to require the jury to find two distinct solicitations.
Issues
| Issue | Plaintiff's Argument (Sherman) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether dual convictions for solicitation and traveling after solicitation violate double jeopardy when based on the same charged conduct | Single solicitation (the charged solicitation) is subsumed in the traveling count; dual convictions violate double jeopardy | The record contains multiple, discrete solicitations; separate acts legally support multiple convictions | No double jeopardy violation where record shows multiple solicitations; convictions affirmed |
| Whether courts may rely on uncharged conduct in the record to find multiple solicitations | Courts should not treat uncharged conduct as a basis to defeat double jeopardy protection | Court may examine the record for uncharged but proven discrete acts to support multiple convictions (per Lee) | First DCA follows Lee and considers uncharged solicitations in the record to uphold multiple convictions |
| Adequacy of jury instructions and verdict form regarding distinct acts requirement | Jury instructions did not require finding two distinct solicitations; verdict form risked unconstitutional result | State did not need to amend instructions because record established multiple solicitations | Concurring judge warned instructions were inadequate, but majority affirmed under Lee; suggested an easy fix would be clearer charging/instructions |
| Applicability of Shelley (limiting dual convictions when based on same conduct) | Shelley requires relief where solicitation and traveling stem from the same solicitation | Shelley does not bar multiple convictions where there are multiple solicitations in the record | Shelley bars dual convictions only when both counts rest on a single solicitation; not implicated here because record shows multiple solicitations |
Key Cases Cited
- State v. Shelley, 176 So. 3d 914 (Fla. 2015) (held dual convictions for solicitation and traveling after solicitation violate double jeopardy when based on the same solicitation)
- Lee v. State, 223 So. 3d 342 (Fla. 1st DCA 2017) (en banc) (permitted considering uncharged discrete acts in the record to uphold multiple convictions)
- Sherman v. State, 160 So. 3d 494 (Fla. 1st DCA 2015) (earlier panel decision affirming Sherman’s convictions prior to supreme court quash and remand)
- Stapler v. State, 190 So. 3d 162 (Fla. 5th DCA 2016) (refused to deny double-jeopardy claim based on uncharged conduct that could have been charged)
- Pamblanco v. State, 199 So. 3d 507 (Fla. 5th DCA 2016) (found double jeopardy violation where information charged only one solicitation despite multiple occurrences)