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Dettle v. State

Florida Court of Appeals, First District

May 25, 2017

MATTHEW JOSEPH DETTLE Appellant/Petitioner(s),
v.
STATE OF FLORIDA Appellee/Respondent(s)

         L.T. No.: 01-2012-CF-003050-A

         Appellant's motion for rehearing or certification, filed January 31, 2016, is denied.

          LEWIS and WINSOR, JJ., CONCUR;

          BILBREY, J. DISSENTS WITH OPINION.

         I respectfully dissent from the denial of Appellant's motions for rehearing and to certify a question to the Florida Supreme Court as to the issue of double jeopardy. However, I believe Appellant has conflict jurisdiction for Florida Supreme Court review based on our original decision, which conflicts with State v. Shelley, 176 So.3d 914, 919 (Fla. 2015), [1] as well as numerous cases from other Florida district courts as discussed below.

         Appellant challenges his convictions, after jury trial and guilty verdicts, of 1) traveling to meet a person believed to be a child after using a computer or device capable of electronic data storage to solicit unlawful sexual conduct, pursuant to section 847.0135(4)(a), Florida Statutes (2012); 2) use of a computer online service or other device capable of electronic data storage to seduce, solicit, lure, or entice, a person he believed to be a child, under section 847.0135(3)(a), Florida Statues (2012); and 3) unlawful use of a two-way communication device (cell phone) to further the commission of a felony, under section 934.215, Florida Statutes (2012). In our original opinion we properly rejected four of the issues raised by Appellant. In the original decision we also rejected - incorrectly I now believe - part of his fifth issue that the multiple convictions of the "same offense" based on the same conduct constitute double jeopardy. Accordingly, I would affirm Appellant's conviction for the greater offense of traveling to meet a person believed to be a child after using a computer or device capable of electronic data storage to solicit unlawful sexual conduct, pursuant to section 847.0135(4)(a), Florida Statutes, and vacate the convictions and sentences for the lesser offenses in both counts II and III.[2]

         This case is the result of a strategic ruse by the Alachua County Sheriff's Office where law enforcement personnel placed an advertisement for legal social interaction, [3]to which Appellant responded. Appellant and the officer then engaged in e-mail and text communications. In the third exchange of messages - less than three hours after Appellant's first response - the officer claimed to be a 14-year-old girl, and Appellant clearly believed that he was sending messages to a minor. Appellant continued to communicate with the fictitious minor and he initiated the suggestion of sexual activity on the second day after his initial response to the advertisement.[4]

         The content of the ensuing messages over the following two weeks, from July 19 to August 3, 2012, and the fact that Appellant drove over 100 miles on August 3, 2012, to the address provided by the officer as the residence of the supposed 14-year-old, were not in question. What is in question on appeal is the legal issue of whether the convictions for all three offenses as charged in the three-count information withstand constitutional scrutiny under a double jeopardy analysis and current governing case law. "A determination of whether double jeopardy is violated based on undisputed facts is a legal determination; thus, this Court's review is de novo." State v. Drawdy, 136 So.3d 1209, 1213 (Fla. 2014). Appellant unsuccessfully raised the issue of double jeopardy during the jury instruction conference, at sentencing, and in a postconviction motion raising sentencing error. Even if he had not raised the issue, "a violation of a defendant's substantive double jeopardy rights constitutes fundamental error [which] may be raised for the first time on appeal." Holt v. State, 173 So.3d 1079, 1081 (Fla. 5th DCA 2015) (considering double jeopardy issue applied to convictions under §§ 847.0135(4) and 934.15, Fla. Stat.).

         Count I of the information alleged that the traveling offense occurred "on or about August 3, 2012." Counts II and III alleged that the computer online solicitation and the use of a two-way communication device to further the commission of a felony took place "from, on, or between July 21, 2012 through, on, or about August 3, 2012." The evidence adduced at trial included multiple communications between Appellant and the Alachua County Sheriff's deputy posing as the minor, several of which were sufficient to prove solicitation of unlawful sexual conduct and use of a two-way communication device to further the commission of a felony. However, there is no way to be certain that Appellant was not convicted in violation of double jeopardy of the same acts he committed on August 3, 2012, when the Appellant traveled after soliciting and unlawfully used a two-way communication device to solicit the purported minor.

         As explained by the Florida Supreme Court, "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." Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009). The U.S. Supreme Court summarized the test to determine whether there are "two offenses or only one" in Blockburger v. United States, 284 U.S. 299 (1932). This "Blockburger test" to determine if multiple convictions and punishments are for "the same offense" or separate offenses is codified in section 775.021(4), Florida Statutes, which provides in part:

(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; and the sentencing judge may order the sentences to be served concurrently or consecutively. 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 ...

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