The State appeals the trial court’s order granting James Randall Wilson’s motion to dismiss charges of attempting to solicit a minor for sexual activity using an eleсtronic device or internet service, and traveling to meet a minor for unlawful sexual activity after first using an electronic device or internet service tо attempt to solicit the minor.
Responding to an ad in the “personals” section of the internet site “Craig-slist,” Wilson began an email and text dialogue with a detective posing as the aunt of a thirteen-year-old girl purportedly being offered for sex. It is unnecessаry to detail all of the exchanges between Wilson and the detective. In summary, the evidence reviewed in connection with Wilson’s motion to dismiss, when viewed in the light most favorable to the State,
Section 847.0135(3)(a), Florida Statutes, provides that:
Any person who knowingly uses a computer online servicе, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(a) Seduce, solicit, lure, or entice, or attempt to seduсe, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual eon-*948 duct with a child or with another person believed by the person to be a child ... commits a felony of the third degree
(Emphasis added). As highlighted above, this subsection criminalizes an “attempt” to “solicit, lure, or entice” a child (or person believed to be a child) for sex to the same degree as an actual solicitation of the child (or person believed to be a child).
In short, the statutes at issue criminalize an attempt to solicit to the same degree as a completed solicitation — and an attempt by definition does not require proof that the accused actually committed the act attempted. Morehead v. State,
In reaching this cоnclusion, we are mindful that the legislature has also separately criminalized the solicitation of certain adult intermediaries for sex with a minor. See § 847.0135(3)(b), Fla. Stat. (2011) (criminalizing the use of an electronic device or internet service to “[s]olicit, lure, or entice, or attempt to solicit, lure, or entice a parent, lеgal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct”); § 847.0135(4)(b), Fla. Stat. (2011) (сriminalizing the act of traveling to meet a minor (or person believed to be a minor) for sexual activity after using an electronic device or internet sеrvice to “[s]olicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person bеlieved to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct”). The fact that the legislature chose to directly criminalize conduct in one subsection of
Finding that the trial court erred in granting Wilson’s motion to dismiss, we reverse the trial court’s order and remand for further proceedings.
concurring specially.
The trial court сoncluded that a “solicitation” must be direct with the person believed to be a child to constitute a crime. The majority does not address this precise issue because the State argued on appeal that the conduct here constituted an “attempted solicitation,” also prohibited by the statute. Hаd it been argued, I would have concluded that the evidence here was sufficient to establish a prima facie case of guilt that Appellant committed a “solicitation.” There is nothing in this statute that evinces a legislative intent to criminalize only a direct solicitation of a child (as contrasted with one that is indirect). “Solicit” simply means to ask. See Fla. Std. Jury Instr. (Crim.) 23.6 (“solicit” means to “ask earnestly”). When the solicitor asks, the crime is committed. The mere posting of a general solicitаtion on a “local bulletin board service,” for example, is a completed crime under this statute, irrespective of whether it is read by anyone. It follоws that a solicitation can occur if, instead of placing the message with a bulletin board service, the request is communicated through another persоn, with the intent that the message reach the minor. This could be established in either of two circumstances: where the solicitor believes that the intermediary is aсting as the agent for the child or where the solicitor intends for the intermediary to pass the message on to the child. Admittedly, the distinction is inconsequential here, because this statute addresses both solicitation and attempted solicitation.
Notes
. § 847.0135(3)(a), (4)(a), Fla. Stat. (2011). These subsections are part of Florida’s Computer Pornography and Child Exploitation Prevention Act, section 847.0135, Florida Statutes (2011).
. "When considering a defendant's rule 3.190(c)(4) motion to dismiss, all questions and inferences from the facts must be resolved in favor of the state.” Boler v. State,
. In common parlance, “attempt” means "to make an effort to do, accomplish, solve or effect” something. See Meiriam-Webster’s Collegiate Dictionary 79 (11th ed. 2012).