State of Florida v. Brian Mitchell Lee , 223 So. 3d 342 ( 2017 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
BRIAN MITCHELL LEE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant/ DISPOSITION THEREOF IF FILED
Cross-Appellee,
CASE NOS. 1D15-0943 & 1D15-0945
v.
STATE OF FLORIDA,
Appellee/
Cross-Appellant.
____________________________/
Opinion filed June 1, 2017.
An appeal from the Circuit Court for Escambia County.
Terry D. Terrell, Judge.
Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public
Defender, Tallahassee, for Appellant/Cross-Appellee.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney
General, Tallahassee, for Appellee/Cross-Appellant.
ON MOTION FOR REHEARING EN BANC
ROWE, J.
We grant the State’s motion for rehearing en banc, vacate our prior opinion
issued on November 28, 2016, and substitute the following opinion:
Brian Mitchell Lee challenges his convictions for (1) traveling to meet a minor
to engage in sexual conduct; (2) the unlawful use of a two-way communications
1
device to facilitate the commission of a felony; and (3) using a computer to facilitate
or solicit the sexual conduct of a child. We affirm as to all issues raised by Lee, but
write to address only one. He argues that the decisions in State v. Shelley, 176 So.
3d 914 (Fla. 2015), and Hamilton v. State, 163 So. 3d 1277 (Fla. 1st DCA 2015),
compel reversal of two of his convictions on double jeopardy grounds. The State
seeks review of the trial court’s departure sentence in a separate appeal. 1
We affirm Lee’s convictions for all three offenses because, unlike in Shelley
and Hamilton, his multiple convictions were not based on the same conduct. Rather,
Lee’s convictions arose from separate criminal episodes and distinct criminal acts;
thus, they do not violate the prohibition against double jeopardy. But we reverse
Lee’s sentences and remand for resentencing because the trial court improperly
departed downward when imposing the sentences.
I. Facts & Procedural History
Lee placed an ad in the Casual Encounters section of Craigslist, seeking an
encounter with a male “under 25” years old. An investigator presenting himself as
“Matt” responded to Lee’s ad after he determined the ad could be an effort to initiate
contact with a minor. The investigator promptly informed Lee that “Matt” was only
fourteen years old. But even after learning that “Matt” was a minor, Lee continued
1
These appeals were consolidated for all purposes, and the State’s appeal was treated
as a cross-appeal.
2
the communications. Over the course of the next eleven days, the two exchanged
multiple emails and Lee proposed that the two engage in various sexual acts. On the
twelfth day, Lee asked to meet “Matt” in person. When Lee arrived at the agreed-
upon location, he was met by law enforcement and arrested. A search of his truck
revealed erectile dysfunction medications.
The State charged Lee by information with three felony offenses: traveling to
meet a minor to engage in sexual conduct, unlawful use of a two-way
communications device to facilitate the commission of a felony, and using a
computer to facilitate or solicit the sexual conduct of a child. Lee moved to dismiss
the charges, arguing that counts one and three violated double jeopardy, because the
elements of solicitation were subsumed within the offense of traveling to meet a
minor. He also argued that counts one and two violated double jeopardy, because
the elements of using a two-way communications device were subsumed within the
offense of traveling, and that both offenses occurred within a single episode. The
trial court denied the motion, and the case proceeded to trial.
Through the testimony of the investigating officer, the State introduced into
evidence the entire transcript of the communications between Lee and “Matt.” The
testimony demonstrated that the communications occurred over the course of twelve
days and involved multiple acts of solicitation.
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After the State rested, Lee admitted during his testimony that the transcript of
communications introduced into evidence was accurate. He asserted that he placed
the ad on Craigslist to meet adult males. He declared that he was certain that “Matt”
was a police officer from the beginning, but decided to play along because he wanted
to “get back” at the police for targeting homosexuals in these types of undercover
operations. Dr. Julie Harper, a clinical and forensic psychologist, testified that Lee
had a narcissistic and obsessive compulsive personality and that he had previously
been diagnosed with depression. She described Lee, a family physician, as highly
intelligent with a lot of inner pain and low self-esteem.
The jury returned a guilty verdict on all three counts, and the case proceeded
to sentencing. Lee’s Criminal Punishment Code scoresheet established a minimum
permissible sentence of forty-five months’ imprisonment. He filed a sentencing
memorandum, requesting a downward departure based on several non-statutory
mitigators. At sentencing, Lee presented the testimony of two employees, four
former patients, and his brother. Defense counsel argued that the trial court should
downwardly depart because Lee never had sexual contact with a minor, he showed
great potential for rehabilitation, he maintained a close relationship with his family,
and he lacked any history of prior criminal activity. The State specifically argued
that none of those factors warranted the imposition of a downward departure
sentence and argued against the trial court imposing such a sentence. The State
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argued that Lee was a danger to the community and that the court should impose a
sentence of no less than five years’ imprisonment.
Before imposing Lee’s sentences, the trial court noted that Lee had virtually
no prior criminal record and that it had not been proven that Lee had any
inappropriate physical contact with a child. The court observed that it was
uncontradicted that Lee was suffering from depression when he committed these
crimes. The court also considered that countless patients continued to seek treatment
from Lee during the pendency of these charges.
The court departed downward, declining to impose a term of imprisonment,
instead sentencing Lee to concurrent terms of two years’ community control
followed by thirteen years’ probation. On the Criminal Punishment Code
scoresheet, the trial court specified that the departure sentence was based on the
statutory mitigator that Lee required specialized treatment for a mental disorder that
was unrelated to substance abuse or addiction. The court further indicated its reliance
on the non-statutory mitigators announced at the sentencing hearing. This appeal
and cross-appeal follow.
II. Analysis
We begin our analysis with a discussion of double jeopardy principles,
including: (i) which party bears the burden to demonstrate a double jeopardy
violation; (ii) the three-step test to be applied to determine whether multiple
5
convictions violate the prohibition against double jeopardy; and (iii) the factors and
evidence to be considered when applying the three-step test. Next, we explain why
the holdings in Shelley and Hamilton have no application to our double jeopardy
analysis in this case. Then, we apply these principles to explain why Lee’s multiple
convictions do not violate the prohibition against double jeopardy. Finally, we
explain why the trial court erred in imposing the downward departure sentence.
A. Double Jeopardy Principles
The Double Jeopardy Clause provides protection from three separate types of
double jeopardy. “[It] protects against a second prosecution for the same offense
after acquittal. It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the same
offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984) (quoting North Carolina v.
Pearce, 395 U.S. 711, 717 (1969)). Here, Lee argues that he received multiple
punishments for the same offense; thus our analysis concerns this type of double
jeopardy claim.
i. Burden to Demonstrate a Double Jeopardy Violation
The party alleging error bears the burden to demonstrate reversible error on
appeal. See Stone v. Stone, 873 So. 2d 628, 630 (Fla. 2d DCA 2004). And when it
is a defendant appealing a trial court’s ruling, “the defendant bears the burden of
demonstrating that an error occurred in the trial court.” Jones v. State, 923 So. 2d
6
486, 488 (Fla. 2006) (quoting Goodwin v. State, 751 So. 2d 537, 544 (Fla. 1999)).
A defendant alleging a double jeopardy violation is in no different position; it
remains the defendant’s burden to establish that a double jeopardy violation has
occurred. See Sprouse v. State, 208 So. 3d 785, 787 (Fla. 1st DCA 2016) (“Sprouse
has not met his burden of showing his multiple convictions violate double
jeopardy.”); Edwards v. State, 139 So. 3d 981, 983 (Fla. 1st DCA 2014) (“The
burden of proof was Edwards’ to demonstrate error in this case.”); see also Capron
v. State, 948 So. 2d 954, 957 (Fla. 5th DCA 2007) (observing that a defendant bears
the burden of proving a double jeopardy violation). And after a jury trial, the burden
to demonstrate error is especially heavy as the reviewing court must view “the
evidence in the light most favorable to the jury verdict.” Williams v. State, 90 So.
3d 931, 933 (Fla. 1st DCA 2012).
ii. Three-Step Test for Analyzing Double Jeopardy Claims
Alleging Multiple Punishments
A court reviewing a double jeopardy claim alleging multiple punishments
must apply a three-step test. State v. Paul, 934 So. 2d 1167, 1172-73 (Fla. 2006).
We explained how the test should be applied in Partch v. State, 43 So. 3d 758, 760
(Fla. 1st DCA 2010): First, we must determine whether the convictions “were based
on an act or acts which occurred within the same criminal transaction and/or
episode.” Id. Second, if the convictions arose from the same criminal episode, we
“must then determine if the convictions were predicated on distinct acts.” Id. Third,
7
“[i]f the charges are not predicated on distinct acts and have occurred within the
same criminal episode, we must next decide if the charges survive a same elements
test as defined by section 775.021, Florida Statutes [(2013)], commonly referred to
as the Blockburger analysis.” Id. (citing to Blockburger v. United States, 284 U.S.
299 (1932)). Thus, we only reach the third step of the analysis, the so-called “same
elements” test, if the first two questions are answered in the negative. See Graham
v. State, 207 So. 3d 135, 141 (Fla. 2016) (clarifying that the same elements test
applies when a defendant is convicted under multiple statutes for a single criminal
act); Tindal v. State, 145 So. 3d 915, 923-34 (Fla. 4th DCA 2014) (engaging in same
elements analysis only after concluding that the offenses occurred during the same
criminal episode and that the charges were not based on distinct acts); Sanders v.
State, 101 So. 3d 373, 375 (Fla. 1st DCA 2012) (explaining that if the charged
offenses occurred in separate episodes or involved distinct acts, no further analysis
is required to conclude that the offenses do not violate double jeopardy).
iii. Factors and Evidence to Consider in Each Step
Each of the three steps of the double jeopardy test requires application of
different factors and consideration of specific types of evidence. In the first step,
when determining whether the defendant’s convictions arose from offenses
occurring in one or more criminal episodes, the reviewing court examines “whether
there are multiple victims, whether the offenses occurred in multiple locations, and
8
whether there has been a ‘temporal break’ between offenses.” Paul, 934 So. 2d at
1173 (quoting Murray v. State, 890 So. 2d 451, 453 (Fla. 2d DCA 2004)). The
existence of a separation in time, place, or circumstance allows the court to ascertain
“whether the defendant had time to pause, reflect, and form a new criminal intent
between occurrences.” Hammel v. State, 934 So. 2d 634, 635 (Fla. 2d DCA 2006)
(quoting Eaddy v. State, 789 So. 2d 1093, 1095 (Fla. 4th DCA 2001)). Minimal
lapses in time can be sufficient for a defendant to form a new criminal intent between
offenses. See White v. State, 924 So. 2d 957, 957-58 (Fla. 4th DCA 2006); Burrows
v. State, 649 So. 2d 902, 903 (Fla. 1st DCA 1995) (superseded by statute on other
grounds as stated in Jupiter v. State, 833 So. 2d 169 (Fla. 1st DCA 2002)).
When determining whether offenses occurred during the same criminal
episode, the reviewing court examines the entire record, including all evidence
admitted at trial. See Edwards, 139 So. 3d at 92 (examining the record to determine
whether the defendant’s convictions arose from a single criminal episode); Sanders,
101 So. 3d at 375 (relying on the record to determine whether appellant’s convictions
arose from offenses occurring in the same criminal episode); Williams, 90 So. 3d at
933 (relying on the record to determine whether appellant’s convictions were based
on offenses occurring in a single criminal episode); Nicholson v. State, 757 So. 2d
1227 (Fla. 4th DCA 2000) (holding that the defendant’s convictions under
identically worded counts of throwing a deadly missile into a dwelling did not
9
violate double jeopardy because the evidence presented at trial clearly distinguished
between the two counts).
If, and only if, we determine that multiple offenses occurred during a single
criminal episode do we proceed to the second step of the test. This step involves the
determination of whether the offenses are based on distinct criminal acts. In
assessing whether acts are distinct, the reviewing court examines “whether there was
(1) a temporal break between the acts, (2) intervening acts, (3) a change in location
between the acts; and/or (4) a new criminal intent formed.” Partch, 43 So. 3d at 761
(citing Hayes v. State, 803 So. 2d 695, 700 (Fla. 2001)). The Florida Supreme Court
has described a distinct act as:
“[W]hen the impulse is single, but one indictment lies, no matter how
long the action may continue. If successive impulses are separately
given, even though all unite in swelling a common stream of action,
separate indictments lie.” Wharton’s Criminal Law (11th Ed.) § 34. Or,
as stated in note 3 to that section, “The test is whether the individual
acts are prohibited, or the course of action which they constitute. If the
former, then each act is punishable separately. If the latter, there can be
but one penalty.”
Graham, 207 So. 3d at 139 (quoting Blockburger, 284 U.S. at 302). A similar
analysis was applied in R.J.R. v. State, 88 So. 3d 264, 268 (Fla. 1st DCA 2012),
when this Court observed, “the State failed to establish that the acts occurred in
different locations, that there was any temporal break between the two acts that
would have enabled R.J.R. to reflect and form a new criminal intent for the second
act, or that there were any intervening acts interrupting R.J.R.’s resisting arrest.”
10
Just as was required in the first step of the test, step two requires the
examination of the entire record before a court may conclude that multiple acts are
distinct for double jeopardy purposes. See Graham, 207 So. 3d at 141 (relying on
the record to determine whether the defendant’s multiple convictions were based on
distinct acts); McCarter v. State, 204 So. 3d 529, 530 (Fla. 1st DCA 2016)
(concluding that the record established two distinct acts of solicitation, a request for
illicit pictures and a solicitation for a lewd or lascivious molestation, to support
appellant’s dual convictions for solicitation and traveling). This Court applied the
distinct acts test in our decision in Harris v. State, 111 So. 3d 922, 924 (Fla. 1st DCA
2013), and examined the entire record to determine whether the facts reflected “an
uninterrupted series of acts, as opposed to distinct acts separated by time, intervening
acts, or different locations.”
Third, and only after determining that the conduct involved did not arise from
separate criminal episodes or distinct acts occurring during a single criminal episode,
the reviewing court must apply the third step of the analysis, same elements test. In
this step, the court must determine whether each of the charged offenses requires
proof of an element that the other does not. § 775.021(4)(a), Fla. Stat. (2013). The
general rule is that the Legislature intends to allow punishment for each criminal
offense committed during a single criminal episode or transaction. Harris, 111 So.
3d at 924. But three statutory exceptions to that rule must be considered, to wit:
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1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by
statute.
3. Offenses which are lesser offenses the statutory elements of which
are subsumed by the greater offense.
§ 775.021(4), Fla. Stat. (2013).
Significantly, when applying the same elements test, the reviewing court’s
analysis is limited to examining the elements of the statute, “without regard to the
accusatory pleading or the proof adduced at trial.” § 775.021(4)(a), Fla. Stat.
(2013); see also Glover v. State, 29 So. 3d 325, 326 (Fla. 1st DCA 2010) (explaining
that the examination of facts is improper when applying the same elements test).
The supreme court recently reaffirmed the requirement to examine only the elements
of the statutes involved when applying the third step of the double jeopardy
analysis. See Roughton v. State, 185 So. 3d 1207, 1210 (Fla. 2016) (holding that an
examination of anything other than elements of the charged offenses was contrary
to the plain language of the statute).
B. Shelley and Hamilton
Lee argues that the supreme court’s decision in Shelley and our court’s
decision in Hamilton require reversal of his convictions for unlawful use of a two-
way communications device and solicitation because both offenses are subsumed
within his conviction for traveling after solicitation. We disagree. Both Shelley
and Hamilton are cases where the reviewing court has proceeded to the third step of
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the double jeopardy analysis and applied the same elements test. Thus, the holdings
in those cases apply only where the reviewing court has determined that the
defendant’s convictions were based on conduct which occurred in a single criminal
episode and did not involve distinct criminal acts. And neither decision disturbs
well-established precedent that double jeopardy “does not prohibit multiple
convictions and punishments where a defendant commits two or more distinct
criminal acts.” Hayes, 803 So. 2d at 700 (emphasis in original). Because Lee’s
convictions arise both from separate criminal episodes and distinct criminal acts, the
rationale in Shelley and Hamilton is not applicable and does not bar his multiple
convictions.
i. Shelley
Following a plea, Shelley was convicted of a single count of traveling and a
single count of solicitation. Shelley, 176 So. 3d at 916-17. Shelley argued that his
convictions violated double jeopardy because solicitation was a lesser-included
offense of traveling after solicitation. On review, the supreme court agreed that a
double jeopardy violation occurred. The court did not expressly analyze whether
Shelley’s convictions for traveling and solicitation arose from separate criminal
episodes or involved distinct criminal acts. Id. at 917-19. Instead, the court limited
its analysis to applying the third step of the double jeopardy test. However, the
13
supreme court applied only this step of the analysis because it concluded Shelley’s
dual convictions were based on the same conduct.
Although Shelley communicated “[o]ver the course of several days” with an
undercover officer “posing as a single mother nudist ‘looking for family fun,’” the
court’s opinion indicates that only a single act of solicitation was involved. Id. at
916. The supreme court specifically observed that the “State relied upon the same
conduct to charge both offenses.” Id. at 917 (emphasis added). And the court
expressly held that “Shelley’s dual convictions for solicitation and traveling after
solicitation based on the same conduct impermissibly place[d] him in double
jeopardy.” Id. at 919 (emphasis added). Thus, because it concluded that Shelley’s
offenses were based on a single criminal act of solicitation, the court proceeded to
apply the same elements test to determine whether the elements of solicitation were
subsumed by the elements of traveling after solicitation. Id. at 919; see also Graham,
207 So. 3d at 141 (holding that when a defendant is convicted under multiple statutes
for a single criminal act, a reviewing court applies the same elements test); Tindal,
145 So. 3d at 923-24 (applying the same elements test only after concluding that the
offenses occurred during the same criminal episode and that the offenses were not
based on distinct acts).
When applying the third step, the court examined the language in section
847.0135(3), Florida Statutes, in which the Legislature authorized separate
14
punishments for each use of a computer service or device to solicit a child and
determined that this language failed to “address what effect charging a solicitation
offense has on the State’s ability to use the same solicitation to charge the defendant
with traveling after solicitation.” Id. at 919 (emphasis added). Holding that this
intent did not translate into an intent to authorize separate convictions for conduct
that constituted both solicitation and traveling after solicitation, the court applied the
same elements test and determined that the elements of solicitation were subsumed
within the elements of traveling after solicitation. Id.
Thus, the supreme court’s holding is that “dual convictions for solicitation and
traveling after solicitation” violate double jeopardy when they are “based on the
same conduct.” Id. at 919. Shelley does not proscribe convictions for traveling and
solicitation based on either (1) multiple acts of solicitation that occur during separate
criminal episodes or (2) distinct acts of solicitation that occur during a single
criminal episode. And Shelley does not disturb well-established precedent allowing
for multiple punishments where a defendant commits multiple criminal acts.
Accordingly, dual convictions for solicitation and traveling are not barred by Shelley
and do not violate double jeopardy, if the record demonstrates that the defendant
made two or more solicitations. Rather, 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.
15
ii. Hamilton
Lee also attempts to rely on our decision in Hamilton to argue that his charges
of traveling after solicitation and unlawful use of a two-way communications device
violate double jeopardy, but his argument fails. 163 So. 3d at 1278. Hamilton
argued that his convictions for both offenses arose from the same criminal episode,
and thus, violated double jeopardy because the elements of unlawful use of a two-
way communications device were subsumed within the elements of traveling after
solicitation. Id. We agreed and held that dual convictions for traveling after
solicitation and unlawful use of a two-way communications device violated the
prohibition against double jeopardy, when the offenses occurred during the course
of the same criminal episode. Id. at 1278-79. Although this Court did not expressly
examine whether there were distinct acts of solicitation, we implicitly did so by
proceeding to step three of the double jeopardy analysis and examining whether the
offenses contained the same elements. See Tindal, 145 So. 3d at 923-24; Sanders,
101 So. 3d at 375. Applying the same elements test, we concluded that Hamilton’s
dual convictions violated double jeopardy. Hamilton, 163 So. 3d at 1279.
Based on our holding that Hamilton’s multiple convictions arose from a single
criminal episode and our application of only the third step of the double jeopardy
test, Hamilton does not proscribe convictions for traveling after solicitation and use
of a two-way communications device based either on distinct acts of solicitation
16
occurring in multiple criminal episodes or on distinct acts of solicitation occurring
in a single criminal episode. Rather, the holding in Hamilton, like the holding
in Shelley, is limited to cases where the defendant is charged with multiple offenses
based on a single act of solicitation.
iii. Post- Shelley and Hamilton Decisions
In some recent decisions, our sister courts have misconstrued the holdings
of Shelley and Hamilton in one or more of the following respects.2 First, in some
cases ostensibly involving separate criminal episodes or distinct acts, the courts
appear to have proceeded directly to the third step of the double jeopardy analysis
without examining whether the offenses arose from separate criminal episodes or
distinct acts. See, e.g., Thomas v. State, 209 So. 3d 35, 35 (Fla. 2d DCA 2016)
(concluding, despite evidence at trial of “increasingly lurid text messages and
communications” over the course of four days, that appellant’s convictions for
traveling and solicitation violated double jeopardy by examining only the charging
documents and without analyzing whether his convictions were based on distinct
acts of solicitation); Stapler v. State, 190 So. 3d 162, 164 (Fla. 5th DCA 2016)
(finding a double jeopardy violation despite evidence of multiple acts of solicitation,
and expressly declining to consider any information outside of the charging
2
But see Griffith v. State, 208 So. 3d 1208 (Fla. 5th DCA 2017) (affirming
appellant’s convictions after concluding that the record did not demonstrate that the
convictions for traveling and solicitation were based on the same conduct).
17
document). Those courts should have applied the three-step analysis outlined in Paul
and Partch and determined whether the convictions in those cases arose from a single
criminal episode or whether the convictions were based on distinct acts before
proceeding to the same elements test.
Second, other courts have applied the first two steps of the double jeopardy
analysis but limited their review of the record to the charging document and the jury
verdict. See, e.g., Honaker v. State, 199 So. 3d 1068, 1068 (Fla. 5th DCA 2016)
(granting relief on appellant’s postconviction double jeopardy claim by relying on
the information to determine whether offenses arose from the same conduct despite
evidence at trial that the defendant engaged in “inappropriate communications” over
the course of four days); Mizner v. State, 154 So. 3d 391, 400 (Fla. 2d DCA 2014)
(declining to consider the State’s argument that the evidence at trial showed that the
offenses occurred on different days during separate criminal episodes because the
information was not sufficiently specific). But, the proper application of steps one
and two of the double jeopardy analysis necessarily requires an examination of the
entire evidentiary record – examination of separate criminal episodes and distinct
criminal acts should not be limited to the charging document and the jury verdict.
Third, it appears that some courts have implicitly and erroneously shifted the
burden to the State to show that the jury’s multiple guilty verdicts were not based on
a single act of solicitation, rather than requiring the appellant to show that the record
18
could not support convictions for multiple offenses. 3 See, e.g., Holt, 173 So. 3d at
1081 (holding that it may not assume that offenses were predicated on distinct acts
where neither the charging information nor the jury verdict form included specific
language predicating the charges on distinct acts). But in double jeopardy cases, it
is the appellant’s burden to demonstrate that an error occurred at the trial level, not
the State’s burden to show that error did not occur. See Edwards, 139 So. 3d at
983; Capron, 948 So. 2d at 957.
C. Application of the Three-Step Test to Lee’s Multiple Convictions
Initially, we observe that the previous majority opinion implicitly shifted the
burden to the State to show that the jury did not convict Lee of all three offenses
based on a single act of solicitation when it held:
In this case, although the proof at trial of text messages over several
days established multiple uses of Appellant's cell phone to facilitate a
felony and also established multiple solicitations, we cannot presume
3
We acknowledge that some of the language in our Partch decision has been
construed to limit the distinct acts analysis to consideration of the charging
information and the jury verdict and to implicitly shift the burden to the State to
prove that an error did not occur. For example, the Fifth District relied on Partch to
support its conclusion that: “Neither the charging information nor the jury verdict
form included language clearly predicating the disputed charges on two distinct acts.
As a result, the State charged the offenses as occurring during a single criminal
episode, and we may not assume that they were predicated on distinct acts.” Holt v.
State, 173 So. 3d 1079, 1081 (Fla. 5th DCA 2015). Recognizing that Partch has
been construed in this unintended manner, we now hold and clarify that a reviewing
court must examine the entire record before reaching a conclusion about whether
multiple convictions are based on distinct criminal acts. And the burden is on the
appellant to demonstrate that the record could not support multiple convictions.
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with certainty that Appellant was not convicted of the same act in
all three counts. The information in this case did not allege distinct
acts; the verdict form did not separate the acts; and the evidence
presented to the jury could support, but did not require, the jury
to find that the acts underlying Appellant’s conviction were
separate. Therefore we find that a double jeopardy violation has
occurred.
Lee v. State, 2016 WL 6928551, *4 (Fla. 1st DCA Nov. 28, 2016) (emphasis added).
We repeat that it is the defendant’s burden to demonstrate on appeal that his
convictions violate double jeopardy, not the State’s burden to prove the
negative. See Sprouse, 208 So. 3d at 787; Edwards, 139 So. 3d at 983.
Consequently, having vacated our opinion issued on November 26, 2016, we
consider Lee’s claim of a double jeopardy violation under the framework outlined
in Section A of this opinion.
To prevail on both of his double jeopardy claims, Lee must show that his
convictions were based on the same act of solicitation. But his claims must fail, if
the record establishes three or more criminal episodes of solicitations or three or
more distinct acts of solicitation. A separate solicitation is required to support each
of the counts charged in the information. One solicitation is required to support
Lee’s traveling after solicitation conviction, because all of the elements of
solicitation are subsumed within the offense of traveling after solicitation. Shelley,
176 So. 3d at 919. A second solicitation is required to support Lee’s conviction for
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unlawful use of a two-way communications device. Hamilton, 163 So. 3d at 1279.
And a third solicitation is necessary to support the solicitation conviction.
The State charged Lee as follows:
BRIAN MITCHELL LEE, on or about January 2, 2014, at and in
Escambia County, Florida, did knowingly travel any distance either
within this state, to this state, or from this state by any means, or who
attempted to do so, for the purpose of engaging in any illegal act
described in Chapter 794, Chapter 800, or Chapter 827, Florida
Statutes, or to otherwise engage in other unlawful sexual conduct with
a child less than 18 years of age or with another person believed by the
said BRIAN MITCHELL LEE to be a child less than 18 years of age,
after using a computer on-line service, Internet service, local bulletin
board service, or any other device capable of electronic data storage or
transmission to seduce, solicit, lure or entice or attempted to seduce,
solicit, lure, or entice a child or another person believed by BRIAN
MITCHELL LEE to be a child, to-wit: a law enforcement officer
posing as a 14-year-old male child, to engage in any illegal act
described in Chapter 794, Chapter 800, or Chapter 827, Florida
Statutes, or to otherwise engage in other unlawful sexual conduct with
a child, in violation of Section 847.0135(4)(a), Florida Statutes.
BRIAN MITCHELL LEE, on one or more occasions between
December 22, 2013, and January 1, 2014, at an in Escambia County,
Florida, did unlawfully and knowingly use a two-way communication
device, to-wit: cellular telephone, to facilitate or further the
commission of a felony offense, to-wit: Traveling to Meet a Minor
to Engage in Sexual Conduct, in violation of Section 934.215, Florida
Statutes.
BRIAN MITCHELL LEE, on one or more occasions between
December 22, 2013, and January 1, 2014, at and in Escambia County,
Florida, did knowingly utilize a computer on-line service, Internet
service, or local bulletin board service, or any other device capable of
electronic data storage or transmission to seduce, solicit, lure, or entice,
or attempt to seduce, solicit, lure, or entice a child or another person
believed by the said BRIAN MITCHELL LEE to be a child less than
18 years of age, to-wit: a law enforcement officer posing as a 14-
21
year-old male child, to commit any illegal act described in Chapter
794, relating to sexual battery; Chapter 800, relating to lewdness and
indecent exposure; or Chapter 827, relating to child abuse, or to
otherwise engage in any unlawful sexual conduct with a child or with
another person believed by the said BRIAN MITCHELL LEE to be a
child, in violation of Section 847.01325(3)(a), Florida Statutes.
Thus, the unlawful use of the two-way communications device and solicitation
counts were charged as occurring “on one or more occasions between December
22, 2013 and January 1, 2014.” The traveling after solicitation count was charged
as occurring on January 2, 2014. But because there was no evidence of a solicitation
on January 2, 2014, the solicitation required to support the traveling count must have
occurred during the period the parties were communicating via email: December
22, 2013 through January 1, 2014. The solicitations required to support the other
two counts also must have occurred during the same eleven-day period.
Based on the unambiguous language of the information, Lee was on notice
and the jury could find that Lee committed multiple acts of solicitation during the
charged period. Further, neither the jury instructions nor the verdict form limited
the jury to considering only one act of solicitation for all three offenses. Rather, both
were general and contained no reference to any date or any specific act of
solicitation.
But despite the express language of the information alleging one or more acts
of solicitation over the course of eleven days, Lee argues that the charging
documents, jury instructions, and the verdict form were not sufficiently specific to
22
allow the jury to base each of his convictions on a separate solicitation.4 This
argument is meritless for two reasons. First, the State is not required to allege in the
information the specific solicitation associated with each count charged in the
information or listed on the verdict form to defeat a double jeopardy
claim. 5 See Fravel v. State, 188 So. 3d 969, 971 (Fla. 4th DCA 2016) (holding that
double jeopardy was not implicated by a two-count information that charged the
defendant with two degrees of the same offense where the evidence at trial clearly
distinguished between the two counts); Nicholson, 757 So. 2d at 1228 (rejecting a
double jeopardy claim based on two counts of throwing an object into a house where
“the evidence at trial clearly distinguished between the two separate offenses.”).
Second, to determine whether multiple solicitations occurred during different
criminal episodes or whether there were distinct acts of solicitation within a single
criminal episode, we are required to review the record in its entirety. Graham, 207
So. 3d at 141 (relying on evidence presented at trial to determine whether appellant’s
4
The trial court went over the jury instructions line-by-line with both parties.
Defense counsel agreed to the standard jury instructions and did not request any
special instructions. See Jaimes v. State, 51 So. 3d 445, 448 (Fla. 2010) (holding
that jury instructions are subject to the contemporaneous objection rule). Further,
defense counsel agreed to the verdict form proposed by the court. See Morris v.
State, 658 So. 2d 155, 156 (Fla. 1st DCA 1995) (holding that a contemporaneous
objection is required to preserve an argument about an error in a verdict form).
5
Florida Rule of Criminal Procedure 3.140(n) permits a defendant to file a motion
for a statement of particulars if the defendant believes that the information is
insufficient to allow preparation of a proper defense. Lee did not file such a motion.
23
convictions were based on distinct acts); Sanders, 101 So. 3d at 375 (relying on the
record to determine whether appellant’s convictions occurred in the same criminal
episode). When viewed in the light most favorable to the jury’s verdict, the record
shows that Lee’s convictions were based on conduct that occurred during separate
criminal episodes and involved at least five distinct acts of solicitation.
i. Step One – Lee’s Solicitations Occurred During Multiple Criminal Episodes
To determine whether Lee’s multiple convictions arose from conduct
occurring during a single criminal episode, we consider the following factors:
whether there were multiple victims, whether the criminal offenses occurred in
multiple locations, and whether there was a temporal break between
offenses. Partch, 43 So. 3d at 760. It is undisputed that this case does not involve
multiple victims. However, the record demonstrates that over the course of eleven
days, Lee committed multiple acts of solicitation using his two-way communications
device from multiple locations. The trial testimony established that Lee solicited the
investigator using his mobile phone from his home, from his office, and from the
dog track.
In addition to the undisputed evidence of multiple locations, there were
several significant temporal breaks between Lee’s solicitations of the person he
24
thought was a fourteen-year-old.6 A review of the emails in the record shows that
almost thirteen hours elapsed between Lee’s first and second conversations with the
investigator. The longest temporal break in communication was seventy-two hours;
this occurred when Lee traveled out of state for the holidays. Another significant
break in communication occurred between December 26 and December 27 when
over sixteen hours elapsed before Lee and the investigator resumed communication.
And, during the next four days, there were five-hour, eleven-hour, and twelve-hour
breaks in their conversations. The email communications show that Lee slept, went
to work, traveled, and socialized when he was not communicating with “Matt.”
These breaks gave Lee ample opportunity to pause and reflect on the legality of his
actions. White, 924 So. 2d at 957-58 (holding that appellant had time to form a new
criminal intent while waiting for the victim to emerge from the bathroom); Duke v.
State, 444 So. 2d 492, 494 (Fla. 2d DCA 1984) (holding that “a matter of seconds”
was sufficient for appellant to form a new criminal intent between sexual battery
offenses); Bass v. State, 380 So. 2d 1181, 1183 (Fla. 5th DCA 1980) (holding that
the time it took appellant to drive to a more isolated location was sufficient for
appellant to form a new criminal intent between sexual battery offenses).
6
The distinct acts of solicitation and the times they occurred will be more fully
described in the following section.
25
Thus, viewing the record in the light most favorable to the jury’s verdict, we
hold that the solicitations in this case occurred during the course of multiple criminal
episodes. Therefore, Lee cannot show he was convicted for multiple offenses of
solicitation arising from the same criminal episode. This conclusion alone is
sufficient to defeat his double jeopardy arguments. See Hammel, 934 So. 2d at 635
(holding that appellant was properly charged for each internet conversation without
violating double jeopardy protections because each conversation was a distinct
criminal episode).
ii. Step Two – Lee’s Multiple Distinct Acts of Solicitations
However, even were we to assume that the conversations between Lee and the
investigator should be treated as a single ongoing eleven-day criminal episode, we
would conclude that the record includes evidence of multiple, distinct acts of
solicitation. In assessing whether Lee’s acts during the eleven-day conversation
constitute distinct acts, we examine the record to determine whether there were
temporal breaks, intervening acts, changes in locations, and time to form a new
criminal intent between Lee’s solicitations. Partch, 43 So. 3d at 761. As discussed
above, the record must show at least three separate and distinct acts of solicitation
to uphold Lee’s convictions.
26
The uncontroverted record before this Court shows that Lee solicited the
investigator at least five times for different unlawful acts, from different locations,
and at different times via a two-way communications device (his mobile phone):
1. On December 26, 2013, between 5:46 p.m. and 8:12 p.m., Lee
solicited “Matt” for a lewd or lascivious battery 7 by offering to teach
“Matt” how to perform oral sex. This solicitation occurred while Lee
was in Indiana visiting his family for the holidays.
2. The second solicitation occurred the following night on December
27, 2013, between 11:16 p.m. and 11:49 p.m., as Lee was traveling back
to Florida. At that time, Lee solicited “Matt” for lewd or lascivious
molestation 8 when he asked to grab “Matt’s” buttock and genital area.
3. Another solicitation for lewd or lascivious battery occurred an hour
later when Lee offered to perform oral sex on “Matt.” Lee was still
traveling back to Florida at this point as he mentioned stopping to
refuel.
4. The solicitations resumed two days later on December 30, 2013,
between 8:08 p.m. and 8:57 p.m. when Lee was at home. At that time,
Lee solicited “Matt” for another lewd and lascivious battery by
describing in detail a fantasy about engaging in sexual conduct at a
water park with “Matt,” who would appear to others to be his son.
7
Lewd or lascivious battery is defined as “engaging in sexual activity with a person
12 years of age or older but less than 16 years of age.” § 800.04(4)(a)1., Fla Stat.
(2013). For the purposes of this statute, sexual activity is defined as “the oral, anal,
or vaginal penetration by, or union with, the sexual organ of another or the anal or
vaginal penetration of another by any other object; however, sexual activity does not
include an act done for a bona fide medical purpose.” § 800.04(1)(a), Fla. Stat.
(2013).
8
Lewd or lascivious molestation occurs when: “A person who intentionally touches
in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the
clothing covering them, of a person less than 16 years of age, or forces or entices a
person under 16 years of age to so touch the perpetrator . . . .” § 800.04(5)(a), Fla.
Stat. (2013).
27
5. The final solicitation occurred three days later on January 1, 2014
(the day before Lee traveled to meet “Matt”), at 10:22 p.m. when Lee
solicited Matt for a lewd or lascivious battery by discussing the
performance of oral sex. Lee was at home when this conversation
occurred.
Lee solicited the investigator for unlawful sex acts over an eleven-day time
span with up to a three-day temporal break between solicitations. Those breaks in
time gave Lee ample opportunity to pause and reflect on the legality of his
actions. Duke, 444 So. 2d at 494; Bass, 380 So. 2d at 1183. Lee also changed
locations between solicitations. He solicited the investigator while visiting family
in Indiana, while returning to Florida, and while he was at home. And finally, the
solicitations were distinct in character. Lee solicited the person he thought to be a
minor for multiple, distinct acts of lewd or lascivious battery and lewd or lascivious
molestation.
Based on the multiple temporal breaks between communications, the multiple
locations involved, and the different types of unlawful acts Lee solicited, we hold
that the record established no fewer than five distinct acts of solicitation. This
evidence of five distinct solicitations is more than sufficient to support Lee’s three
convictions: one solicitation to prove the underlying offense necessary for his
conviction for traveling to meet a minor, a second solicitation to prove the
underlying offense necessary for his conviction for unlawful use of a two-way
communications device, and a third solicitation to prove that he used a computer to
28
solicit a child. And even if all five of the solicitations had occurred during the same
criminal episode, we would still hold these acts to be separately punishable, because
the Legislature has expressed its intent to charge and punish each separate act of
solicitation. See § 847.0135(3), Fla. Stat. (2013).
Accordingly, viewing the record in the light most favorable to the jury’s
verdict, we conclude that Lee’s convictions for traveling after solicitation, unlawful
use of a two-way communications device, and soliciting a minor do not violate
double jeopardy because his convictions were based on distinct criminal acts. Based
on this conclusion, we need not proceed to step three of the double jeopardy analysis
– the same elements test.9 Our analysis of Lee’s double jeopardy claim ends here.
D. Downward Departure Sentence
The State appeals the trial court’s imposition of the downward departure
sentence in this case. The imposition of a downward departure sentence is a two-
part process. Childers v. State, 171 So. 3d 170, 172 (Fla. 1st DCA 2015). First, the
trial court must determine whether there is a legal reason for departure and factual
support for that reason. Id. This portion of the trial court’s decision will be sustained
on appellate review if the court applied the correct rule of law and if competent,
substantial evidence supports its ruling. Id. Second, the trial court must determine
9
Had Lee’s convictions been based on a single act of solicitation occurring during a
single criminal episode, then the decision in Shelley would have required reversal of
his solicitation conviction.
29
whether departure is the best sentencing option for the defendant by weighing the
totality of the circumstances, including aggravating and mitigating factors. Id. We
review this portion of the trial court’s decision for an abuse of discretion. Id.
Here, the State argues that the trial court erred in imposing a downward
departure sentence because there was no evidence to support the court’s statutory
ground for departure (that Lee required specialized treatment for a mental disorder
that was unrelated to substance abuse or addiction) and because the non-statutory
grounds (Lee’s ability to be rehabilitated, his contribution to the community, his
employment history, his family background, and his lack of a criminal history) were
not valid reasons for departure. We agree.
i. Preservation
Before the merits of this argument may be addressed, we must first determine
whether the State properly preserved this argument for review. The supreme court
recently held that the State’s objection to a downward departure sentence is properly
preserved when the prosecutor objects during the same proceeding in which the
defendant is sentenced and states the legal grounds for the objection. State v. Wiley,
2017 WL 526510, at *2 (Fla. Feb. 9, 2017). Here, the State properly preserved its
argument that the trial court erred in imposing a downward departure sentence. At
the sentencing hearing, the State argued that Lee was a danger to the community and
asked the court to impose a sentence of at least five years’ imprisonment. Further,
30
the State argued in rebuttal to defense counsel’s argument for a departure sentence
that none of the mitigating factors presented by the defense warranted a departure.
Because the trial court was on notice of the reasons that the State objected to the trial
court’s imposition of a departure sentence and the State raises those same arguments
on appeal, this issue is preserved for appellate review.
ii. Analysis
Lee was convicted of traveling to meet a minor to engage in sexual conduct,
which is a second-degree felony punishable by up to fifteen years’ imprisonment.
§§ 775.082(3)(d), 847.0135(4)(a), Fla. Stat. (2013). Lee was also convicted of
unlawful use of a two-way communications device and using a computer to solicit
sexual conduct of a child, which are third-degree felonies punishable by up to five
years’ imprisonment. §§ 775.082(3)(e), 847.0135(3)(a), 934.215, Fla. Stat. (2013).
Although Lee’s Criminal Punishment Code scoresheet provided for a minimum
permissible sentence of forty-five months’ imprisonment, the trial court was free to
impose up to the statutory maximum on each count and to run the sentences
consecutively. §§ 921.00265(1), 921.16(1), Fla. Stat. (2013). Thus, Lee was facing
a total of twenty-five years’ imprisonment. Instead, he was sentenced to a total of
two years’ community control followed by thirteen years’ probation.
The trial court relied on the statutory mitigating factor that Lee “requires
specialized treatment for a mental disorder that is unrelated to substance abuse or
31
addiction, or for a physical disability, and the defendant is amenable to treatment.”
§ 921.0026(2)(d), Fla. Stat. (2013). The trial court also relied on the following non-
statutory mitigating factors: Lee’s ability to be rehabilitated, his contribution to the
community, his employment history, his family background, and his lack of criminal
history.
a. Statutory Mitigator
Section 921.0026(2)(d) allows for a departure sentence when a defendant
proves by a preponderance of the evidence: (1) he has a mental disorder unrelated
to substance abuse or addiction or a physical disability; (2) his disorder or disability
requires specialized treatment; and (3) he is amenable to treatment. State v.
Chubbuck, 141 So. 3d 1163, 1171 (Fla. 2014). Although the trial court relied on this
factor, Lee never sought mitigation on this basis at the sentencing hearing or in his
sentencing memorandum. Further, the record does not contain sufficient evidence
to support departure on this basis. The trial court correctly observed that Lee
suffered from depression not related to substance abuse or addiction. But there was
no evidence that Lee was suffering from depression at the time he committed his
offense or at the time of sentencing, that he needed specialized treatment, or that he
was amenable to treatment. Thus, there is no competent, substantial evidence to
support a departure based on this factor.
32
b. Non-Statutory Mitigators
The trial court also departed based on several non-statutory mitigating factors.
When the court bases a departure on a non-statutory factor, the factor must be
permissible and supported by competent, substantial evidence. State v. Bowman,
123 So. 3d 107, 109 (Fla. 1st DCA 2013). To be permissible, the non-statutory
mitigator must be consistent with legislative sentencing policies. Id. “The
mitigating factors specifically listed by the legislature focus on the nature of the
crime, the conduct of the defendant or the mental capacity, condition, or attitude of
the defendant. Further, the first purpose of sentencing is to punish, not rehabilitate.
Finally, the legislative sentencing policy is to ensure that violent criminals are
incarcerated.” State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).
None of the non-statutory mitigating factors relied on by the trial court were
legally permissible to sustain a departure sentence. Initially, the trial court pointed
to Lee’s potential for rehabilitation as a reason for imposing a lesser sentence.
However, amenability to rehabilitation has been rejected as a valid reason for a
departure. Id. at 313. Next, the court relied on Lee’s employment history and
contribution to the community as a physician as mitigating factors. But the fact that
Lee is employed as a family practitioner who is highly valued by his patients is not
a sufficient reason to depart from the Criminal Punishment Code. As the Fourth
District observed: “All defendants suffer the consequences of a criminal conviction.
33
The sentencing guidelines do not provide special treatment for the trained, educated
or licensed. To achieve equality in sentencing, trial judges must be blind as to the
color of a defendant’s collar.” State v. Lacey, 553 So. 2d 778, 780 (Fla. 4th DCA
1989).
The trial court also noted that Lee had the support of his family when it
decided to impose a departure sentence. However, the fact that a defendant has
strong family support has been rejected as a valid reason for a departure. Chestnut,
718 So. 2d at 314 (“[W]e do not believe that the legislature intended that a defendant
from an exemplary family should be excused from serving the sentence
recommended for his offense.”). Finally, the court relied on Lee’s lack of criminal
history. This is not a valid reason for departing because a defendant’s criminal
history is considered when calculating his minimum permissible sentence. See State
v. Chapman, 805 So. 2d 906, 908 (Fla. 2d DCA 2001); State v. Scaife, 676 So. 2d
1035, 1036 (Fla. 5th DCA 1996). Thus, none of the non-statutory mitigators were
permissible considerations in accordance with legislative sentencing policies. As
neither the statutory mitigator nor the non-statutory mitigators supported a
downward departure, the trial court erred in sentencing Lee.
III. Conclusion
Because, viewed in the light most favorable to the jury verdict, the record
demonstrates that Lee’s convictions for traveling after solicitation, unlawful use of
34
a two-way communications device, and solicitation occurred during separate
criminal episodes and involved distinct acts of solicitation, Lee’s convictions do not
violate double jeopardy. We, therefore, affirm Lee’s convictions. However, because
the trial court erred in imposing a downward departure sentence, we vacate Lee’s
sentences and remand for resentencing. On remand, the trial court may again
consider imposing a departure sentence if there are valid legal grounds to support
the departure sentence, and those legal grounds are supported by competent,
substantial evidence. Jackson v. State, 64 So. 3d 90 (Fla. 2011).
AFFIRMED in part, REVERSED in part, and REMANDED.
ROBERTS, C.J., WOLF, LEWIS, B.L. THOMAS, WETHERELL, RAY,
OSTERHAUS, KELSEY, WINOKUR, JAY, WINSOR, and M.K. THOMAS, JJ.,
concur.
WINOKUR, J., concurs in an opinion in which B.L. THOMAS and OSTERHAUS,
JJ., join.
BILBREY, J., concurs in part and dissents in part in an opinion in which MAKAR,
J., joins.
MAKAR, J., concurs in part and dissents in part with opinion.
35
WINOKUR, J., concurring.
I fully agree with the majority opinion, both in its approach to analyzing the
double-jeopardy issue as well as its conclusion here. However, I also see a more
fundamental issue with Lee’s position that the majority opinion does not address:
neither the protection against double jeopardy, nor the requirements of section
775.021(4), Florida Statutes, entitled Lee to pretrial dismissal of any charges based
upon a claim that multiple charges violated his protections against multiple
punishment. Lee’s motion to dismiss could have been denied on this basis alone.
As the majority opinion notes, “[t]he guarantee against double jeopardy
consists of three separate constitutional protections: ‘It protects against a second
prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple
punishments for the same offense.’” Lippman v. State, 633 So. 2d 1061, 1064 (Fla.
1994) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). This case
involves the protection against “multiple punishments for the same offense.”
In a case involving the protection against successive prosecution, the
defendant’s double-jeopardy rights are violated when the government files a
successive criminal charge. See Dell’Orfano v. State, 616 So. 2d 33, 36 (Fla. 1993)
(holding that “a double jeopardy violation will be presumed when the State attempts
a successive prosecution” under specific circumstances). As such, dismissal of the
36
successive charge is the appropriate remedy for a successive-prosecution violation.
Fla. R. Crim. P. 3.190(b) (defenses of “former acquittal” and “former jeopardy” may
be made by motion to dismiss the indictment or information).
However, in the multiple punishment context, it is the punishment that
implicates the protection against double jeopardy, not the criminal charges alone.
Simply charging and trying a defendant on multiple charges for the same crime does
not violate double jeopardy. For this reason, a pretrial dismissal of charges was not
an appropriate remedy in this case, regardless of whether the counts violated the
multiple-punishment aspect of double jeopardy.
The United States Supreme Court made this rule clear in Ohio v. Johnson, 467
U.S. 493 (1984). Johnson was charged with murder, involuntary manslaughter,
aggravated robbery, and grand theft, and entered a guilty plea to involuntary
manslaughter and grand theft. Because these crimes were lesser-included offenses
of the remaining crimes (murder and robbery, respectively), the state court granted
the defendant’s motion to dismiss the remaining counts, on the ground that
continuing the prosecution would constitute a double-jeopardy violation. Johnson at
494-96. The Supreme Court disagreed, holding that “multiple punishments”
protections are not implicated merely because the defendant is put on trial for two
offenses when one offense is subsumed by the other. Id. at 499-500. “While the
Double Jeopardy Clause may protect a defendant against cumulative punishments
37
for convictions on the same offense, the Clause does not prohibit the State from
prosecuting respondent for such multiple offenses in a single prosecution.” Id. 10
We applied the Johnson rule in State v. Sholl, 18 So. 3d 1158 (Fla. 1st DCA
2009). Sholl claimed that the charge of transmitting material harmful to a minor
violated the prohibition against double jeopardy because it contained the same
elements as a separate charge of lewd and lascivious exhibition. We ruled that the
defendant was not entitled to pretrial dismissal of any charges:
[T]he trial court should not have considered Sholl’s
double jeopardy claim until sentencing. When an
information contains two or more charges which amount
to the same offense, “[d]ouble jeopardy concerns require
only that the trial judge filter out multiple punishments at
the end of the trial, not at the beginning.” Claps v. State,
971 So. 2d 131, 134 (Fla. 2d DCA 2007). To this end,
double jeopardy protections may not be extended to an
earlier stage of the proceeding, such as the filing of the
information or jury selection. Id. Otherwise, the trial court
would be “usurp[ing] the State’s discretion to make
strategic decisions about charging alleged criminal
activity.” Id. at 134–35.
Sholl, 18 So. 3d at 1162. The Sholl court concluded that the double jeopardy
argument was “premature and an improper basis for dismissal.” Id. (footnote
omitted). See also State v. Lewek, 656 So. 2d 268 (Fla. 4th DCA 1995) (“Despite
10
“Multiple punishment” does not necessarily mean “multiple sentences.”
The Florida Supreme Court has ruled the “multiple punishment” prohibition is
implicated by “multiple convictions and punishments for the same offense.” Gordon
v. State, 780 So. 2d 17, 19 (Fla. 2001) (emphasis supplied), receded on other grounds
by Valdes v. State, 3 So. 3d 1067 (Fla. 2009).
38
this clear rule saying that a defendant cannot be convicted of both manslaughter and
vehicular homicide for a single death, there is no such rule saying that he cannot
be charged with both crimes.”) (emphasis in original). 11
Johnson and Sholl apply here. Lee moved to dismiss the information pursuant
to Florida Rule of Criminal Procedure 3.190, on essentially the same ground as the
defendant in Sholl. But even if some of the charges against Lee had been subsumed
by other charges, he would not have been entitled to dismissal of the charges. 12
11
Note that the issue here is not the allowable “unit of prosecution.” See State
v. Rubio, 967 So. 2d 768 (Fla. 2007) (determining whether split-fee patient
brokering statute permitted a single charge based on the fee-splitting agreement, or
separate charges for every individual instance of fee-splitting); Allen v. State, 82 So.
3d 118 (Fla. 4th DCA 2012) (determining whether the crime of transmission of
images harmful to minors permits only a single count for one transmission, or
separate counts for each image transmitted). A “unit of prosecution” issue addresses
whether the Legislature intended a single charge for criminal conduct, or multiple
charges for individual acts within the criminal conduct. This issue obviously entails
the propriety of the charges themselves, so pretrial dismissal of excess charges
would be the appropriate remedy. However, to the extent that excess counts violate
the multiple-punishment aspect of double jeopardy, relief for the double-jeopardy
violation is not available until multiple convictions are imposed.
12
Section 775.021(4) provides the statutory method for determining whether
multiple punishments violate double jeopardy. See e.g., State v. Shelley, 176 So. 3d
914, 917-18 (Fla. 2015) (“[A]bsent an explicit statement of legislative intent to
authorize separate punishments for two crimes, application of the Blockburger[ v.
United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932),] ‘same-elements’
test pursuant to section 775.021(4), Florida Statutes[,] is the sole method of
determining whether multiple punishments are double-jeopardy violations.”)
(quoting Gaber v. State, 684 So. 2d 189, 192 (Fla. 1996)). Moreover, section
775.021(4) speaks in terms of “conviction,” “adjudication of guilt,” and “sentence.”
Accordingly, like the constitutional protection against multiple punishments for the
39
This is not an academic distinction where the motion to dismiss is simply
“premature,” as we characterized it in Sholl. The dissenting opinions here conclude
that Lee made a prima facie showing of a double-jeopardy violation by alleging in
his motion to dismiss that some of his charges were subsumed by other charges,
which shifted the burden to the State to demonstrate that the three counts did not
violate double jeopardy. However, under Johnson and Sholl, the motion to dismiss
was improper, so it could not have shifted the burden to the State to disprove a
double-jeopardy violation. 13
Judge Makar’s dissenting opinion argues that Lee was entitled to “have his
double jeopardy concerns addressed at some point,” even if he was not entitled to
pretrial dismissal, and that Sholl “doesn’t mean trial judges must put their heads in
the sand from the start until the end of trial, ignoring obvious double jeopardy
problems raised pre-trial.” Slip op. at 67. I support a policy against judicial head-in-
the-sand putting. But what Lee actually asked of the trial court was to “dismiss the
same crime, section 775.021(4) does not provide for pretrial dismissal of counts as
a remedy.
13
Some cases discussed in the other opinions seem to suggest that a defendant
must file a pretrial motion to dismiss charges in order to “preserve” a double-
jeopardy challenge based on multiple punishments. See Mahar v. State, 190 So. 3d
1123 (Fla. 2d DCA 2016); Fravel v. State, 188 So. 3d 969 (Fla. 4th DCA 2016).
Because a defendant is not entitled to pretrial dismissal of charges in this
circumstance, a motion to dismiss is not necessary to preserve this issue. Neither of
these cases based its ruling on this alleged lack of preservation.
40
charging instrument against him,” based on the claim that the information itself
violated his double-jeopardy rights. This remedy was foreclosed by Sholl, and the
trial court correctly denied it. I see no way that the trial court can “presume” a
double-jeopardy violation pretrial, shifting the burden to the State to disprove it,
unless the remedy for the State’s failure to disprove it is dismissal of charges. And
because pretrial dismissal of charges is not an appropriate remedy for a multiple
punishment violation, this proposal cannot work.
In summary, a defendant claiming a multiple-punishment violation under
either the Double Jeopardy Clause or section 775.021(4) is not entitled to pretrial
dismissal of any counts of the information or indictment. With this observation, I
concur fully in the majority opinion.
B.L. THOMAS and OSTERHAUS, JJ., join.
41
BILBREY, J., concurring in part and dissenting in part.
Because the en banc majority opinion conflicts with State v. Shelley, 176 So.
3d 914 (Fla. 2015) (Shelley II), and numerous cases from other Florida district
courts, on the application of the double jeopardy protections found in the United
States and Florida constitutions, I respectfully dissent from that part of the opinion
and write to explain my view. I agree with other holdings of the en banc majority
opinion as discussed below.
Brian Mitchell Lee appeals his convictions following a jury trial, for traveling
to meet a minor after use of a computer service to seduce, solicit, or lure the minor
to engage in sex, in violation of section 847.0135(4)(a), Florida Statutes (2013)
(count I); unlawful use of a two-way communications device to facilitate the
commission of a felony, in violation of section 934.215, Florida Statutes (2013)
(count II); and use of a computer service to seduce, solicit, or lure a minor to engage
in sex, in violation of section 847.0135(3)(a), Florida Statutes (2013) (count III).
Lee argues that the elements of the unlawful use of the cell-phone (count II) and use
of the computer service to solicit (count III) offenses are subsumed by the elements
of the travel after solicitation offense (count I), and therefore the convictions and
sentences for all three offenses constitute double jeopardy. Because the information
in this case did not allege distinct acts, the verdict form did not separate the acts, and
the evidence presented to the jury was such that the State did not meet its burden —
42
after being challenged by Lee — to show that the acts underlying Lee’s conviction
were separate, I would agree with Lee’s double jeopardy argument and reverse Lee’s
convictions and sentences for counts II and III in this case. I agree with the en banc
majority’s rejection of the other issues raised by Lee without comment.
As to the State’s cross-appeal of the Lee’s downward departure sentences, I
agree with the en banc majority that the recent Florida Supreme Court decision State
v. Wiley, 210 So. 3d 658 (Fla. 2017) (Wiley II), which quashed our earlier decision
in State v. Wiley, 179 So. 3d 481 (Fla. 1st DCA 2015) (Wiley I), preserves for our
review the State’s objection to the downward departure sentences of Lee. I also
agree with the en banc majority that now we can consider the merits of the State’s
objection to the departure sentences, the trial court improperly departed and the case
should be remanded for resentencing, but only as to count I.
PROCEEDINGS AT TRIAL
The State charged Lee with travel after solicitation in count I, “on or about
January 2, 2014.” Count II charged Lee with use of a two-way communications
device to facilitate commission of a felony, and count III charged him with use of a
computer service to seduce or solicit a child, both charges alleged to have occurred
“on one or more occasions between December 22, 2013, and January 1, 2014.” The
charges arose from Lee’s electronic correspondence with an Escambia County
Sheriff’s investigator posing online as a 14-year-old boy. The investigator
43
responded to Lee’s Internet advertisement on Craigslist for legal sexual activity
between adults, but the investigator on December 22, 2013, informed Lee that he
was communicating with an underage boy. Lee persisted with frequent messages
several times per day with increasingly graphic and explicit suggestions of sexual
activity, between December 22, 2013, and January 1, 2014. The only gap in
communications was during Christmas Eve and Christmas Day. None of the
messages dated January 2, 2014, contained any reference to sexual activity, but
January 2, 2014, was the date Lee traveled to meet the investigator’s fictitious
persona. Lee was arrested when he arrived at the agreed-upon meeting place.
Following a jury trial, Lee was convicted and sentenced on all three counts.
BURDEN OF PROOF
I respectfully submit that the cases the en banc majority cites have applied an
oversimplified test by stating that the burden is on a defendant/appellant to show a
double jeopardy violation at the trial level. I think a number of federal cases more
thoroughly explain the burden. “In order to establish a double jeopardy claim, the
defendant must first present a prima facia claim that double jeopardy principles have
been violated. . . . Once a defendant proffers sufficient proof to support a
nonfrivolous claim, the burden shifts to the government to show that double jeopardy
principles do not bar the proceeding.” U.S. v. Cruce, 21 F.3d 70, 74 (5th Cir. 1994)
(citations omitted); see also United States v. Stricklin, 591 F.2d 1112 (5th Cir.
44
1979); United States v. Reed, 980 F.2d 1568 (11th Cir. 1993).14
Here, before trial, Lee moved to dismiss the soliciting and unlawful use of a
communication device charges based on double jeopardy. The trial court heard the
motion, but noted controlling case law from our court 15 and a case where the Second
District had certified conflict. 16 The motion was denied. By setting forth a prima
facia case for double jeopardy violation by showing that Counts II and III were
subsumed in Count I, and with the information showing that the dates overlapped, I
believe that the burden then shifted to the State to show no double jeopardy violation
was present. The State could easily have done that by amending the information to
charge separate offenses occurring on different dates or even after a temporal break
on the same date. See § 847.0135(3)(b), Fla. Stat. (“Each separate use of a computer
14
“‘It is well settled that due process requires the state to prove every element of a
crime beyond a reasonable doubt.’” Warmington v. State, 149 So. 3d 648, 652 (Fla.
2014) (quoting Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991)). It is the State’s
burden to show a defendant’s Fourth Amendment right was not violated in a
warrantless seizure. Dunaway v. New York, 442 U.S. 200 (1979). It is the State’s
burden to show a defendant’s Fifth Amendment right against self-incrimination was
not violated during custodial interrogation. Miranda v. Arizona, 384 U.S. 436
(1966). Why should the State’s burden be different in dealing with the double
jeopardy clause in the Fifth Amendment and article I, section 9, of the Florida
Constitution?
15
The case the trial court was presumably referring to, State v. Murphy, 124 So. 3d
323 (Fla. 1st DCA 2013), was disapproved by the Florida Supreme Court in State v.
Shelley, 176 So. 3d 914 (Fla. 2015) (Shelley II).
16
This case was presumably Shelley v. State, 134 So. 3d 1138 (Fla. 2d DCA 2014)
(Shelley I) which was approved in Shelley II.
45
online service, Internet service, local bulletin board service, or any other device
capable of electronic data storage or transmission wherein an offense described in
this section is committed may be charged as a separate offense.”) (emphasis added).
The court in Griffith v. State, 208 So. 3d 1208 (Fla. 5th DCA 2017),
recognized that a different analysis applies when a defendant raises a double
jeopardy challenge for the first time on appeal. In that situation the double jeopardy
violation must be apparent from the face of the record. Id. at 1211 (citing Novaton
v. State, 634 So. 2d 607 (Fla. 1994)). It is in the situation where a double jeopardy
violation is first raised on appeal that the burden is on the defendant. Griffith, 208
So. 3d at 1211 (citing Edwards v. State, 139 So. 3d 981 (Fla. 1st DCA 2014)). As
discussed below, Lee raised the double jeopardy violations before the trial court and
maintained his innocence throughout the case; therefore, I believe it was the State’s
burden to show no double jeopardy violation occurred. I do not believe the State
met this burden.17
17
Sprouse v. State, 208 So. 3d 785 (Fla. 1st DCA 2016), cited by the en banc majority
as to the burden, is distinguishable because sexual battery and lewd and lascivious
battery are separate and distinct criminal acts which require different elements of
proof. See State v. Drawdy, 136 So. 3d 1209 (Fla. 2014). Unlike those crimes, as
discussed below, the three crimes Lee was charged with are the “same crime” for
double jeopardy purposes. The same analysis applies to Williams v. State, 90 So.
3d 931 (Fla. 1st DCA 2012), also cited by the en banc majority, where the attempted
premediated murder and attempted felony murder counts required proof of different
elements. See § 775.021(4)(a), Fla. Stat. In Capron v. State, 948 So. 2d 954 (Fla.
5th DCA 2007), cited by the en banc majority, double jeopardy was reviewed for
fundamental error since it was not raised at the trial level. In Koon v. State, 463 So.
46
 DOUBLE JEOPARDY
As noted by the en banc majority, the Fifth Amendment protection against
double jeopardy includes the protection claimed here, the protection against multiple
punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717
(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). As
explained by the Florida Supreme Court:
The most familiar concept of the term “double jeopardy” is that the
Constitution prohibits subjecting a person to multiple prosecutions,
convictions, and punishments for the same criminal offense. The
constitutional protection against double jeopardy is found in both
article I, section 9, of the Florida Constitution and the Fifth Amendment
to the United States Constitution, which contain double jeopardy
clauses. Despite this constitutional protection, there is no constitutional
prohibition against multiple punishments for different offenses arising
out of the same criminal transaction as long as the Legislature intends
to authorize separate punishments.
Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009) (footnote omitted). Accordingly, a
starting point for a double jeopardy determination is whether the multiple
2d 201, 203 (Fla. 1985), cited in Capron, it was held to be the defendant’s burden to
show “that the state authorities had little or no independent volition in state court
proceedings” when state and federal prosecutions for the same crime were being
undertaken pursuant to the dual sovereign exception to double jeopardy. See
Bartkus v. Illinois, 359 U.S. 121 (1959). I would read Koon as being consistent with
the above federal cases that a defendant must make out a prima facia case, at which
time the burden falls on the State to show no double jeopardy violation. In Koon,
the defendant did not make a case for application of the exception to the dual
sovereign doctrine. Here, Lee made a prima facia case for a double jeopardy
violation by showing he was charged with the same crimes as a matter of law for the
same offense by one sovereign, the State of Florida.
47
convictions are for “the same criminal offense.” 18
The test to determine if two convictions are for the “same offense” was set out
in Blockburger v. United States, 284 U.S. 299 (1932). The “Blockburger test” is
codified in Florida in section 775.021(4), Florida Statutes, which provides:
(4)(a) Whoever, in the course of one criminal transaction or
episode, commits an act or acts which constitute one or more separate
criminal offenses, upon conviction and adjudication of guilt, shall be
sentenced separately for each criminal offense; . . . For the purposes of
this subsection, offenses are separate if each offense requires proof of
an element that the other does not, without regard to the accusatory
pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for
each criminal offense committed in the course of one criminal episode
or transaction and not to allow the principle of lenity as set forth in
subsection (1) to determine legislative intent. Exceptions to this rule of
construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided
by statute.
3. Offenses which are lesser offenses the statutory elements of
which are subsumed by the greater offense.
§ 775.021(4), Fla. Stat. (2013).
The offenses proscribed by sections 847.0135(4) and 934.215, Florida
Statutes (counts I and II in this case, respectively), have been deemed the same for
purposes of double jeopardy analysis because “the unlawful use of a two-way
18
The en banc majority starts its double jeopardy analysis as a different point, but I
agree that the same three-part test applies. See Partch v. State, 43 So. 3d 758 (Fla.
1st DCA 2010). The Court in Shelley II started, like I do here, with “same criminal
offense” analysis. 176 So. 3d at 917 (quoting Valdes v. State, 3 So. 3d 1067, 1069
(Fla. 2009)).
48
communications device does not contain any elements that are distinct from the
offense of traveling to meet a minor.” Hamilton v. State, 163 So. 3d 1277, 1279
(Fla. 1st DCA 2015). Likewise, in Mizner v. State, 154 So. 3d 391, 399 (Fla. 2d
DCA 2014), dual convictions for unlawful use and traveling to meet a minor based
on the same acts were reversed because “the proof of the unlawful use of a two-way
communications device was subsumed within the proof of the solicitation and
traveling offenses in this case.” Other recent cases have followed in this
determination that violations of section 847.0135(4) (traveling after solicitation) and
934.215 (unlawful use of communications device) are not separate offenses when
the same acts are involved because proof of unlawful use is subsumed within the
proof of the travel. See Holt v. State, 173 So. 3d 1079 (Fla. 5th DCA 2015); Holubek
v. State, 173 So. 3d 1114 (Fla. 5th DCA 2015).
Likewise, the Florida Supreme Court has found that the offenses of use of a
computer service to solicit a minor or supposed minor, and traveling after such
solicitation, are “the same” for purposes of double jeopardy analysis because “the
statutory elements of solicitation are entirely subsumed by the statutory elements of
traveling after solicitation.” Shelley II, 176 So. 3d at 919.19 In Shelley II, the Florida
19
The en banc majority discusses Shelley II and its mention of the “same conduct.”
(Maj. Op. at 14). The majority equates the “same conduct” in Shelley II with a single
act. But I read the “same conduct” discussed in Shelley II to mean the “same
criminal episode or transaction,” a separate consideration in the three-part double
jeopardy analysis. See Partch, 43 So. 3d at 760. A “same criminal episode or
49
Supreme Court ruled that double jeopardy was violated by dual convictions for
solicitation (section 847.0135(3)(a)) and traveling to meet the minor (section
847.0135(4)), where the conduct “constitutes both solicitation . . . and traveling after
solicitation.” 176 So. 3d at 919. The Florida Supreme Court held that Shelley’s dual
conviction violated the Blockburger test in section 775.021(4) because “the statutory
elements of solicitation are entirely subsumed by the statutory elements of traveling
after solicitation.” Id.
CHARGING DISTINCT ACTS TO AVOID DOUBLE JEOPARDY
In State v. Meshell, 2 So. 3d 132 (Fla. 2009), dual convictions for lewd and
lascivious battery were affirmed where the acts occurred within seconds of each
other, but the information alleged different anatomical combinations. As the Florida
Supreme Court in Meshell observed, “Florida courts have focused on whether the
acts forming the basis of the charges are ‘distinct.’” Id. at 134. “Distinct acts” are
“acts of a separate character and type requiring different elements of proof.” Id. at
135; see also Partch v. State, 43 So. 3d 758 (Fla. 1st DCA 2010). While the offenses
described by section 847.0135(3) and section 934.15 are subsumed within the proof
of the offense described by section 847.0135(4), the case law discusses violations of
those statutes which are alleged to have occurred on the same day or span of days.
transaction” or the “same conduct” may encompass multiple single acts. I
respectfully submit that the en banc majority misapplies Shelley II by reading its
“same conduct” discussion to only be a single act.
50
Thus, the actions supporting the charges have been considered the same acts,
committed “in the course of one criminal episode or transaction.” See § 775.021(4).
For example, in Mizner, the State “charged each of the offenses over the same
time period, from November 1, 2011, to November 4, 2011.” 154 So. 3d at 400.
The Mizner court rejected the State’s argument that the multiple uses of
communications devices prevented that offense from being subsumed into the single
charge for travel after solicitation. Id.
In Hamilton, the cell phone uses occurred “over three to four days in May of
2012” and the last element of the travel after solicitation occurred on May 4, 2012.
163 So. 3d at 1278. Even though the acts resulting in the charges “spanned more
than one day,” the court in Hamilton found that the State had “charged them as
occurring during a single criminal episode” and thus vacated the conviction for the
violation of section 934.15. Id. (emphasis added).20
The actions supporting the dual charges in Holt were both alleged to have
occurred “on or about March 14, 2013.” 173 So. 3d at 1081. Because both the
charging document and the jury verdict form lacked any clear language to show that
the charges were based on two distinct acts, “the State charged the offenses as
occurring during a single criminal episode, and we may not assume they were
20
I believe the en banc majority has receded from Hamilton v. State, 163 So. 3d
1277, (Fla. 1st DCA 2015), on this point. I respectfully submit that we should
continue to comply with our holding in Hamilton.
51
predicated on different acts.” Id. at 1081; see also Partch, 43 So. 3d at 762 (“The
ambiguous wording of the charging information and the jury verdict makes it
impossible for this court to know if the jury convicted appellant for one act of sexual
battery or two distinct acts” when the evidence at trial showed overlapping acts).21
Similarly, in Holubek, the unlawful use of a two-way communications device and
the travel to meet the “minor” arose out of the same criminal episode between “the
evening of March 14, 2013, and early morning hours of March 15, 2013.” 173 So.
3d at 1115. See also Meythaler v. State, 175 So. 3d 918 (Fla. 2d DCA 2015) (noting
that State could have avoided the double jeopardy issue by amending the information
to allege additional communications on different dates); Anderson v. State, 190 So.
3d 1120, 1121 (Fla. 1st DCA 2016) (noting that “where the State charges the
defendant with multiple counts of solicitation and also charges the defendant with
traveling, so long as different conduct is alleged with regard to the solicitation and
traveling charges, dual convictions will not violate the defendant’s double jeopardy
21
The en banc majority has “clarified” the language in Partch, which the court in
Holt v. State, 173 So. 3d 1079 (Fla. 5th DCA 2015), as well as other courts, applied
as I do here. I think it is fairer to say that the en banc majority recedes from Partch.
In Partch, we previously held that where “neither the charging information nor the
jury verdict form included language clearly predicating the disputed charges on two
distinct sex acts,” it was “impossible for this court to know if the jury convicted
appellant for one act of sexual battery or two distinct acts” when the evidence
produced at trial showed overlapping acts. Partch, 43 So. 3d at 761-62.
Accordingly, in Partch, the “distinct acts exception” to the double jeopardy rule did
not apply and the conviction was reversed. Id. at 763-64. I would not recede from
Partch and would instead apply its plain language, as other courts have done.
52
rights”).
In Graham v. State, 170 So. 3d 141, 143 (Fla. 1st DCA 2015), aff’d, 207 So.
3d 135 (Fla. 2016), we affirmed a conviction over a double jeopardy challenge where
“the information and the jury verdict demonstrate that the charges were predicated
on two distinct acts.” While we do not know what the information alleged at trial
in Shelley II, we do know that the solicitations occurred “[o]ver the course of several
days.” 176 So. 3d at 916.
In Manetta v. State, 81 So. 3d 560, 562 (Fla. 3d DCA 2012), the court cited
to Partch and found a double jeopardy violation where two counts of lewd and
lascivious molestation were identical and “thus did not so much as allege separate
acts which might form the basis of separate judgments. . . .” See also Gonzalez v.
Jones, 14-20645-CIV, 2015 WL 5144348, at *32 (S.D. Fla. Jan. 22, 2015), report
and recommendation adopted, 14-20645-CIV, 2015 WL 5156566 (S.D. Fla. Sept.
2, 2015) (citing to Manetta and Partch in holding that identical counts in the
information alleging the “same offense” and not alleging “separate acts” resulted in
a double jeopardy violation).
The unlawful use of a computer to solicit conviction was reversed in Batchelor
v. State, 193 So. 3d 1054 (Fla. 2d DCA 2016), due to the possibility that the
additional conviction for traveling after solicitation was based on the same acts. The
State had charged that both offenses occurred on or between June 10, 2013, and June
53
13, 2010, but the court in Batchelor held that it was “not at liberty to infer” from the
record that the State charged the defendant “with two distinct, chargeable offenses,
separated in space or time.” Id. at 1058. Discussing the same argument as the State
makes here, the court in Batchelor stated:
Finally, the State argues that it is not possible to determine whether the
defendant's use of his two-way communications device was the same
as his use of a computer online service or internet service without
looking at the underlying facts of the case. The State is on to something
here, but its analysis ignores the allegations of the charging document
that it filed against Mr. Batchelor. One can imagine a scenario where
convictions for both traveling to meet a minor and the unlawful use of
a two-way communications device could be sustained. But such a
scenario would require a charging document—unlike the one filed in
this case—that distinguished the two acts as occurring separately, and
that facts were adduced at trial to prove that the offenses were indeed
committed as separate and distinct acts.
Id.
The deficiency in the charging document required reversal in Stapler v. State,
190 So. 3d 162 (Fla. 5th DCA 2016), as well. There, dual convictions for solicitation
and travel after solicitation were challenged on double jeopardy grounds. Id. at 163-
64. Acknowledging that sections 847.0135(3) and 847.0135(4) contain the same
elements, “the only issue in this case is whether Stapler can be convicted of multiple
solicitations despite being charged with single counts of solicitation and traveling
based on conduct occurring over the same specified period of time.” Id. at 164. The
State in Stapler argued that the evidence established multiple violations sufficient to
justify convictions under both sections, but the court declined “to deny a double-
54
jeopardy claim ‘based on uncharged conduct simply because it could have been
charged.’” Id. at 165 (quoting State v. Shelley, 134 So. 3d 1138, 1141-42 (Fla. 2d
DCA 2014) (Shelley I)).
In Mahar v. State, 190 So. 3d 1123 (Fla. 2d DCA 2016), the court reversed
dual convictions for solicitation and traveling after solicitation as double jeopardy.
The communications occurred a day prior to travel. “Like Shelley, the State here
charged Mr. Mahar with one count of solicitation based on those multiday
communications and made no effort to charge the conduct in multiple, separate
counts of solicitation.” Id. at 1125 (citing Meythaler, 175 So. 3d at 919).
In Thomas v. State, 209 So. 3d 35, 36 (Fla. 2d DCA 2016), the defendant was
charged with soliciting “on or about March 19, 2013, through March 22, 2013” and
traveling to meet a minor on March 22, 2013. Citing to Shelley II, Mahar,
and Meythaler, the Thomas court found a double jeopardy violation. 209 So. 3d at
36-37.
Accordingly, in order to survive a double jeopardy challenge when a
conviction for travel after solicitation has been obtained, convictions for the lesser
felonies of unlawful use and solicitation must be based on conduct that is not “in the
course of one criminal transaction or episode,” as contemplated by section
775.021(4). See Hartley v. State, 129 So. 3d 486 (Fla. 4th DCA 2014) (solicitation
acts charged as separate counts for each date; travel after solicitation charged on only
55
one of the dates and sufficient solicitation occurred that date to support travel
offense). 22
DISTINGUISHING CERTAIN CASES
The en banc majority relies on certain cases which I believe are
distinguishable or have no application here. There are cases which have held that
although the information did not charge two separate acts, the proof at trial was clear
that distinct acts were involved and therefore double jeopardy was not implicated.23
In our recent case McCarter v. State, 204 So. 3d 529 (Fla. 1st DCA 2016), we found
no double jeopardy violation where clearly distinct acts of solicitation were proven.
In McCarter, the proof at trial of the soliciting a minor charge consisted of multiple
requests via social media for nude pictures of a minor while the solicitation in the
22
It is worth noting that in considering the double jeopardy clause protection against
being twice put to trial for the same offense, the United States Supreme Court has
looked to the charging document (the indictment in federal court) in considering
whether to grant relief. Abney v. United States, 431 U.S. 651 (1977).
23
It would arguably be simpler to rely solely on the specific acts alleged in the
information without regard to what was proven at trial. This appears to be the
approach taken by other districts. See Honaker v. State, 199 So. 3d 1068 (Fla. 5th
DCA 2016); Batchelor v. State, 193 So. 3d 1054 (Fla. 2d DCA 2016); Mizner v.
State, 154 So. 3d 391, 399 (Fla. 2d DCA 2014). But such an approach is precluded
by McCarter v. State, 204 So. 3d 529 (Fla. 1st DCA 2016). In McCarter, the proof
at trial for the soliciting count consisted of multiple requests via social media for
nude pictures of a minor while the solicitation in the traveling after solicitation count
consisted of messages via smart phone to arrange in-person meetings with the minor.
Even if we did not want to overrule McCarter en banc, it could be reconciled with
the cases from the other districts by the approach I propose here to avoid conflict.
56
traveling after solicitation charge consisted of messages via smart phone to arrange
in-person meetings for sexual activity with the minor. Id. at 530. McCarter is
consistent with cases from other courts where double jeopardy was not violated so
long as the evidence at trial clearly distinguished between separate offenses, as
compared to this case, where the evidence did not.
In Fravel v. State, 188 So. 3d 969, 972 (Fla. 4th DCA 2016), convictions for
two counts of fraudulent use of personal identification were affirmed over a double
jeopardy challenge where the evidence at trial showed two different banks and
therefore “clearly distinguished between two separate counts.” In Nicholson v.
State, 757 So. 2d 1227 (Fla. 4th DCA 2000), the convictions for two counts of
throwing deadly missile were affirmed over a double jeopardy challenge based on
the proof at trial of two bricks thrown into two windows. In Nicholson, “the
evidence at trial clearly distinguished between the two separate offenses.” Id. at
1228. In Vizcon v. State, 771 So. 2d 3, 5-6 (Fla. 3d DCA 2000), convictions for 29
counts of money laundering were affirmed over a double jeopardy challenge with a
citation to Nicholson’s requirement that the evidence at trial clearly distinguish
separate offenses to avoid double jeopardy. If we did not want to conflict with these
cases, we could still comply with the prohibition against double jeopardy by finding
no violation where, unlike here, the evidence a trial “clearly distinguished” between
separate acts.
57
APPLICATION OF DOUBLE JEOPARDY TO LEE
Here, the State alleged that the unlawful use and solicitation acts in counts II
and III occurred over a twelve-day span, and the travel after solicitation in count I
occurred only on day thirteen, immediately following the twelve-day span. The
travel after solicitation offense requires proof of prior seduction, solicitation, luring,
or enticement, which culminated in the travel. § 847.0135(4)(a), Fla. Stat. (2013).
In this case, none of the text messages dated January 2, 2014, the day the travel
occurred, were sexually explicit and none contained content constituting seduction
or solicitation. Accordingly, the “after solicitation” element of the travel offense in
count I must have been based on the texts leading up to January 2, the date the final
element of the offense occurred.
In this case, although the proof at trial of text messages over several days
established multiple uses of Lee’s cell phone to facilitate a felony and also
established multiple solicitations, I believe that it is incorrect to presume that Lee
was not convicted of the same act in all three counts. The information in this case
did not allege distinct acts; the verdict form did not separate the acts; and the
evidence presented to the jury could support, but did not require, the jury to find that
the acts underlying Lee’s conviction were separate. Therefore I would find that the
58
multiple convictions and sentences violate double jeopardy. 24
In conclusion as to the double jeopardy issue, the convictions and sentences
for unlawful use of a two-way communications device (count II) and for use of a
computer service to seduce, solicit, or lure a person believed to be a child (count III)
should be reversed while the conviction and sentence for traveling to meet a minor
after using of computer to seduce or solicit a minor (count I) should be
affirmed. See Shelley II, 176 So. 3d at 919-20 (holding that when dual convictions
violate double jeopardy, the lesser offense should be reversed and the greater offense
affirmed). I respectfully dissent from the en banc majority decision to the extent it
affirms Lee’s conviction on all three counts in spite of what I believe are double
jeopardy violations.
STATE’S DOWNWARD DEPARTURE APPEAL
At the time the panel decision issued, we were bound by our earlier decision
24
The en banc majority discusses Hammel v. State, 934 So. 2d 634, 635 (Fla. 2d
DCA 2006), for the contention that each break allowing a defendant to “pause,
reflect, and form a new criminal intent” can be charged separately. I agree that no
double jeopardy violation occurs where the information charges separate acts
following temporal breaks like in Hammel. Here, however, Lee was not charged
with separate acts but with overlapping acts, such that we cannot be clear that the
jury did not convict him of the same act. Duke v. State, 444 So. 2d 492 (Fla. 2d
DCA 1984), and the related cases discussed by the en banc majority concerning
temporal breaks are consistent with State v. Meshell, 2 So. 3d 132 (Fla. 2009), where
dual convictions for lewd and lascivious battery were affirmed where the acts
occurred within seconds of each other, but the information alleged different
anatomical combinations. No such allegations were present in the information here.
59
in Wiley I that required the State to object to a downward departure sentence after
the sentence was imposed for the downward departure to be preserved for appeal.
179 So. 3d at 482. No objection was made by the State after the trial court granted
Lee downward departure sentences, so the panel found that the issue was not
preserved for appellate review. Subsequent to the panel decision, while this case
was being considered en banc, the Florida Supreme Court issued Wiley II which
quashed our decision in Wiley I. Wiley II, 210 So. 3d at 660. Wiley II holds that
the State’s objection to a downward departure sentence is preserved for appellate
review if the State objects during the sentencing process. Id. Here, the State
objected during the sentencing process to the trial court imposing the downward
departure sentences on Lee.
I agree with the en banc majority that the trial court used a statutory mitigator
without competent substantial evidence to support the mitigator and used
impermissible non-statutory mitigators in granting the downward departure. I
therefore agree with the decision of the en banc majority to remand for resentencing
pursuant to Jackson v. State, 64 So. 3d 90 (Fla. 2011). However, because of the
double jeopardy violation, I would vacate the sentences for counts II and III, and
would have the resentencing be only as to count I.
MAKAR, J., joins.
60
MAKAR, J. concurring in part, dissenting in part.
I concur in Judge Bilbrey’s opinion, but write separately to highlight that the
double jeopardy problem in this case stems from a poorly-drawn information and
the lack of jury instructions and a verdict form that assures us that the jury actually
found that each violation of the traveling and solicitation counts charged against Lee
was based on separate and distinct acts. Adequate adjudicative tools exist to protect
against the type of double jeopardy problem presented, but they were not used in this
case, making it impossible to conclude that a constitutional violation did not occur.
Because a double jeopardy violation is universally deemed to fundamentally offend
state and federal constitutions, we have an “unrenunciable judicial duty” to remedy
such a violation even if not raised or preserved by the parties. Hendricks v. State, 34
So. 3d 819, 828 (Fla. 1st DCA 2010); Bishop v. State, 21 So. 3d 830, 832 (Fla. 1st
DCA 2008).
Turning to the information, it charged Lee with three counts: (1) traveling to
meet a minor to engage in sexual contact after using a computer to solicit the illegal
act (“traveling”); 25 (2) unlawfully using a two-way communications device (a
cellphone) to facilitate commission of a felony (“communications”); 26 and (3) using
25
§ 847.0135(4)(a), Fla. Stat. (2013).
26
§ 934.215, Fla. Stat. (2013).
61
a computer to facilitate or solicit sexual conduct with a person believed to be a child
(“solicitation”).27
On the face of the information, a potential double jeopardy problem is
immediately apparent, as Lee pointed out below: the solicitation charged in Count 3
is subsumed in the traveling charge in Count 1. See State v. Shelley, 176 So. 3d 914,
919 (Fla. 2015) (“[B]ecause the statutory elements of solicitation are entirely
subsumed by the statutory elements of traveling after solicitation, the offenses are
the same” for purposes of the double jeopardy test in section 775.021(4), Florida
Statutes.”). This problem is exacerbated because Count 3 of the information charged
that Lee used a computer to engage in solicitations “on one or more occasions” over
ten days. (Emphasis added). As charged, the jury need only find one solicitation to
find Lee guilty as to Count 3. But to also prove the traveling violation in Count 1,
an additional solicitation violation—separate and distinct from the one upon which
the jury found a violation in Count 3—must be shown to avoid a double jeopardy
violation. Stated differently, to uphold concurrent convictions on Counts 1 and 3 as
alleged in the information against Lee, there must be a basis in the record for
concluding that the jury was told and understood that it must actually find at least
two separate and distinct solicitation violations. Absent an amended information or
27
§ 847.0135(3)(a), Fla. Stat. (2013).
62
some means of channeling their decision-making, the jury was without guidance as
to whether they could use just one solicitation violation as the basis for guilt as to
Counts 1 and 3; they were adrift without direction.
The information’s shortcomings led Lee to ask for dismissal on double
jeopardy grounds, but the trial judge summarily denied the request, finding that
“each offense contains an element that the other does not,” which is erroneous in
light of Shelley. The case proceeded to trial, the jury was given only standard
criminal instructions, and a basic verdict form was used asking whether Lee was
guilty as to each of the three counts “as charged in the information.”
Focusing, as we must, on how the jury was instructed and what it did, a glaring
deficiency is obvious. At no point was the jury told it had to find at least two separate
and distinct solicitation violations to hold Lee accountable on both the traveling
count and the solicitation count. See Partch v. State, 43 So. 3d 758, 761-62 (Fla. 1st
DCA 2010) (“[N]either the charging information nor the jury verdict form included
language clearly predicating the disputed charges on two distinct sex acts.”). For all
we know, jury deliberations ended when they found a solicitation violation, marked
“guilty” on the verdict form as to Count 3, and used that same violation to mark
“guilty” as to the traveling charge in Count 1. Nothing in the information, jury
instructions, or verdict form provides any objective basis for excluding this
unconstitutional result; no amount of rumination or hypothesizing changes this
63
conclusion. As we said in Partch, the “ambiguous wording of the charging
information and the jury verdict makes it impossible for this court to know if the jury
convicted appellant for one act of sexual battery or two distinct acts.” Id. at 762. The
same impossibility exists here.
Even if evidence supporting multiple solicitations can be gleaned from the
appellate record, the jury was empowered to find only one solicitation violation as
charged in the information; it was not told that it had to find an additional one to
avoid a double jeopardy violation as to the traveling violation. For this reason, the
en banc court’s conclusion that Lee’s convictions on the three counts were based on
“separate and distinct acts” that “were not based on the same conduct” is unverifiable
and thereby speculative on this record. The State did not charge separate and distinct
counts of solicitation, the jury instructions were silent on the topic, and the verdict
form provides no clue as to whether the jury found separate and distinct acts of
solicitation as to Counts 1 and 3. No objective basis establishes that the jury found a
solicitation violation other than the one, and only one, that underlies the violation it
found as to Count 3; it didn’t know any better, given the problematic information
and the lack of jury instructions/verdict form to guide its decision-making on this
point. End result: we can’t unscramble the egg in this case; Lee was denied the ability
to protect against a double jeopardy violation and the State can’t rule out that his
constitutional right wasn’t infringed.
64
It bears emphasis that a double jeopardy violation is an error of fundamental
proportion, so much so that it can be raised on appeal for the first time even if the
issue was not raised, developed, or preserved. See Lippman v. State, 633 So. 2d
1061, 1064 (Fla. 1994) (“The prohibition against double jeopardy is
‘fundamental.’”) (quoting Benton v. Maryland, 395 U.S. 784, 795-96 (1969) (“The
fundamental nature of the guarantee against double jeopardy can hardly be
doubted.”)). Indeed, a potential double jeopardy violation can be addressed sua
sponte on appeal. Honaker v. State, 199 So. 3d 1068, 1070 (Fla. 5th DCA 2016) (An
appellate court “may sua sponte address fundamental error apparent on the face of
the record” in a pro se, post-Shelley, traveling/solicitation case.). When presented
with an obvious constitutional problem, our obligation is to determine whether a
violation exists, even if Lee had never raised the double jeopardy issue at trial or on
appeal. Hendricks, 34 So. 3d at 828 (“Despite Appellant's failure to argue
fundamental error, we consider whether the purported error is of a fundamental
nature because it is an appellate court's ‘unrenunciable judicial duty’ to correct
fundamental error even if it is not raised.”). That Lee agreed to the jury instructions
and verdict form (or filed a motion to dismiss that was denied) is immaterial here
under double jeopardy fundamental error analysis, particularly so when his attempt
to raise the constitutional issue was summarily dismissed.
65
Here, Lee’s counsel presciently pointed out the potential for a double jeopardy
violation, but erroneously was denied relief at any point on the mistaken view that
solicitation is not subsumed in a traveling violation. Under Shelley, that view is
wrong. Because Lee established the potential for a significant double jeopardy
violation that was dismissed and thereby unaddressed below, the most reasonable
approach in this case is to presume such a violation unless the State can establish the
contrary, much like was done in Dell’Orfano v. State, 616 So. 2d 33, 36 (Fla. 1993),
which placed the burden on the State in a double jeopardy case to overcome the
presumption where the subsequent prosecution is based on the same defendant,
crime, time, and victim. Id. (holding that “wherever there is doubt that the State has
met its burden, the trial court must find a double jeopardy bar if it also concludes
that the State either was aware of or could have discovered the newly charged
offenses through due diligence in the first prosecution” in a subsequent prosecution
case). As in Dell’Orfano, the existence of a potential (if not obvious, in this case)
double jeopardy problem justifies the State having to prove the absence of a
violation. After all, Lee had no way to do so in the trial court, which dismissed his
double jeopardy concerns at the outset. Whether or not he was entitled to dismissal
pre-trial doesn’t matter because he was entitled to have his double jeopardy claim
66
addressed at some point, 28 which did not occur. Lee thereby has met his burden of
demonstrating error of constitutional significance, shifting the burden to State to
demonstrate no double jeopardy violation occurred.
In this regard, our review in this case is not one of evidentiary sufficiency as
to whether five solicitations could have been established at trial; if the State had
charged five counts of only solicitation (without a traveling charge), it is likely this
record would support upholding convictions on those five counts. But that is not
what this case is about. Instead, it is about constitutional sufficiency, that being
whether the charges in the information and the jury instructions/verdict form give us
any basis to conclude that the double jeopardy violation about which Lee complained
does not exist. Because that can’t be done on this record, vacation of the solicitation
count is the appropriate remedy under these unique circumstances post-Shelley.
28
See State v. Sholl, 18 So. 3d 1158 (Fla. 1st DCA 2009) (finding “[w]hen an
information contains two or more charges which amount to the same offense,
‘[d]ouble jeopardy concerns require only that the trial judge filter out multiple
punishments at the end of the trial, not at the beginning’”) (citation omitted). Sholl
doesn’t mean trial judges must put their heads in the sand from the start until the end
of trial, ignoring obvious double jeopardy problems raised pre-trial in a motion to
dismiss or otherwise. Preventing a multi-vehicle pileup is far better than
disentangling its wreckage. In addition, a motion to dismiss in this context is a well-
accepted practice, so much so that the State views it as necessary to preserve a double
jeopardy issue, see, e.g, Fravel v. State, 188 So. 3d 969, 971 (Fla. 4th DCA 2016);
it is not an “improper” motion to be ignored. After Shelley, trial judges should
consider such motions as invitations to avoid constitutional error, not as “improper”
ones to be automatically denied.
67
As a final note, the double jeopardy problem in this case has straightforward
solutions that impose no significant burden on the State, which has tremendous
strategic leeway in deciding which charges to assert in this class of cases. One is for
an information to set forth charges in a way that lessens or avoids a potential double
jeopardy violation; we don’t want a jury that finds only one solicitation to convict a
defendant of two crimes because an information is unclear. The Legislature has
given the State much authority as to the types of crimes charged in this case,
specifically saying that multiple counts of solicitation are permissible. 29 Carefully
crafted counts—that don’t overlap in violation of Shelley—are workable in most, if
not all, cases. Indeed, this approach was suggested in McCarthy v. State, 193 So. 3d
1059, 1059 (Fla. 1st DCA 2016), which involved a double jeopardy violation arising
from “a single count of unlawful use of a computer service and a single count of
traveling to meet a minor; both of these charges were based on the same conduct.”
In a footnote, the panel said:
We note that the outcome of this case would have been different if the
State had charged McCarthy with multiple counts of solicitation and
traveling based on different conduct. See Meythaler v. State, 175 So. 3d
918, 919 (Fla. 2d DCA 2015) (vacating conviction and sentence for
solicitation where information alleged only single counts of solicitation
and traveling based on the same conduct, but noting that if the State had
29
§ 847.0135(3)(b), Fla. Stat. (“Each separate use of a computer online service,
Internet service, local bulletin board service, or any other device capable of
electronic data storage or transmission wherein an offense described in this section
is committed may be charged as a separate offense.”).
68
amended the information to allege additional communications that
occurred, these counts would have survived).
Id. at 1059, n.1. By extension, the outcome of Lee’s case would have been different
had the State charged Lee “with multiple counts of solicitation and traveling based
on different conduct.” Id. Charging one count each of traveling and solicitation,
without specifying they’re based on different conduct, is a recipe for double jeopardy
disaster.
The other solution is to use a jury instruction and/or verdict form that tells
jurors they need to find separate and distinct acts of solicitation to support both a
traveling violation and a solicitation violation. 30 A jury instruction saying that “a
conviction on a traveling count cannot be based on the same act of solicitation used
to convict the defendant on the solicitation count” or the like would guard against a
constitutional violation, even if one or multiple counts of solicitation are alleged.
Here, neither the information, the jury instructions, nor the verdict form constrained
the jurors from wading into an insoluble double jeopardy problem, which appeared
on the face of the information and thereafter was not addressed.
30
This recommendation was made years ago in Judge Cowart’s concurrence in
Barnhill v. State, 471 So. 2d 160, 162 (Fla. 5th DCA 1985), where he said: “Often
violations of double jeopardy are discernible as a matter of law, but when the issue
of double jeopardy turns on a factual issue, as in this case, appropriate jury
instructions and verdicts should be given the jury to permit it to make the necessary
factual distinctions to effectuate the double jeopardy constitutional prohibition.”
69
***
Double jeopardy jurisprudence is among the most confusing and complex,31
generating challenging conundrums and resulting often in widely divergent court
decisions analyzing similar issues; this phenomenon continues post-Shelley, as
Florida courts navigate new and confounding questions. That said, this case presents
the simple question of whether Lee, having brought a meritorious double jeopardy
problem to the trial court’s attention, is entitled to relief when our review of the
record cannot possibly exclude the precise violation about which he complained.
Because we are in the business of protecting constitutional rights, for even those who
commit repugnant acts, the question answers itself.
31
Albernaz v. United States, 450 U.S. 333, 343 (1981) (“[T]he decisional law in the
area is a veritable Sargasso Sea which could not fail to challenge the most intrepid
judicial navigator.”). Bounded by four different ocean currents that form a massive
clockwise-circulating sea vortex, the Sargasso Sea is a unique region in the
North Atlantic Ocean known for its seaweed and clear blue water, depicted “in
literature and media as an area of mystery,” most notably in Jules Verne’s 20,000
Leagues Under the Sea. See Sargasso Sea, Wikipedia,
https://en.wikipedia.org/wiki/Sargasso_Sea/ (last visited April 27, 2017).
70