TYLER SHERMAN v. STATE OF FLORIDA
No. 1D13-4464
First District Court of Appeal State of Florida
May 18, 2018
James C. Hankinson, Judge.
On appeal from the Circuit Court for Leon County. ON REMAND FROM THE FLORIDA SUPREME COURT
This court previously affirmed Sherman’s convictions, Sherman v. State, 160 So. 3d 494 (Fla. 1st DCA 2015), but the supreme court quashed that decision and remanded for reconsideration in light of State v. Shelley, 176 So. 3d 914 (Fla. 2015). On remand, we again affirm. As in today’s decision in Dygart v. State, 1D13-4977 (Fla. 1st DCA May 18, 2018), and as required by our en banc decision in Lee v. State, 223 So. 3d 342, 351-52 (Fla. 1st DCA 2017) (en banc), review granted, SC17-1555 (Feb. 8, 2018), we conclude that because the record shows multiple, discrete solicitations, Sherman cannot meet his burden of showing that his separate convictions for solicitation (in violation of
In Shelley, the supreme court held that separate convictions for both solicitation and traveling after solicitation cannot stand if they are based on the same conduct. Id. The traveling and solicitation counts both require proof that the defendant solicited a child (or someone he thought was a child), and under Shelley, a single solicitation cannot form the basis of both convictions. See Lee, 223 So. 3d at 351-52. But where a defendant’s conduct includes more than one solicitation, Shelley does not require the State to ignore all the solicitations but one. ”Shelley does not disturb well-established precedent allowing for multiple punishments where a defendant commits multiple criminal acts.” Id. at 351. Instead, “the holding in Shelley is limited to cases where the defendant is convicted of both solicitation and traveling after solicitation based on a single act of solicitation.” Id.
In this case, the record demonstrates that Sherman’s two convictions did not turn on a single solicitation. Using two separate email accounts, Sherman solicited a child (or someone he thought was a child) several times before driving to her house for sex. Sherman’s multiple solicitations justified his multiple charges and his multiple convictions. This is therefore not about “uncharged conduct“: Sherman was charged with two crimes and convicted of two crimes, and the State did not rely on the “same conduct” for both. There is no double-jeopardy violation.
AFFIRMED.
WOLF and WINSOR, JJ., concur; MAKAR, J., concurs in result dubitante with opinion.
Not final until disposition of any timely and authorized motion under
Held to a mirror, this case looks just like State v. Shelley, 176 So. 3d 914 (Fla. 2015), which granted relief to Shelley based on double jeopardy principles. Both Sherman and Shelley were charged with a single count of unlawful use of solicitation via computer service in violation of
The State asserts that because Shelley’s three separate uses of computer devices on the date charged in the information would have supported three separate soliciting charges, the soliciting charge is not subsumed by the traveling charge. We are not persuaded by this argument. The State only charged one use of computer devices to solicit, and that charge was based on a solicitation occurring on the same date as the traveling offense. We find no legal basis to deny a double jeopardy challenge based on uncharged conduct simply because it could have been charged. But we acknowledge that convictions for both soliciting and traveling may be legally imposed in cases in which the State has charged and proven separate uses of computer devices to solicit.
Shelley v. State, 134 So. 3d 1138, 1141-42 (Fla. 2d DCA 2014) (emphasis added), approved, 176 So. 3d 914 (Fla. 2015); see also Stapler v. State, 190 So. 3d 162, 164-65 (Fla. 5th DCA 2016) (“While we acknowledge that the State can convict a defendant on multiple counts of solicitation where multiple counts are alleged and established, we join the Second District Court of Appeal in declining to deny a double-jeopardy claim ‘based on uncharged conduct simply because it could have been charged.’“) (footnote omitted); Pamblanco v. State, 199 So. 3d 507 (Fla. 5th DCA 2016) (finding a double jeopardy violation where “unlawful solicitation and travel took place over several days in February 2010” such that “the State could have charged Appellant with multiple counts of solicitation and traveling with regard to the multiple offenses occurring on multiple occasions. However, the information charged Appellant with one count of solicitation and one count of traveling based on the same conduct.“).
Nonetheless, I concur in the result in this case, because Lee is binding, but it is with doubt due to Lee’s analytical approach, and its conflict with Shelley and decisions of other districts.
Ethan Andrew Way, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.