final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. James C.
Andrew Way, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Angela R. Hensel, Assistant
Attorney General, Tallahassee, for Appellee.
ON REMAND FROM THE FLORIDA SUPREME COURT
court previously affirmed Sherman's convictions,
Sherman v. State, 160 So.3d 494 (Fla. 1st DCA 2015),
but the supreme court quashed that decision and remanded for
reconsideration in light of State v. Shelley, 176
So.3d 914 (Fla. 2015). On remand, we again affirm. As in
today's decision in Dygart v. State, 1D13-4977
(Fla. 1st DCA May 18, 2018), and as required by our en banc
decision in Lee v. State, 223 So.3d 342, 351-52
(Fla. 1st DCA 2017) (en banc), review granted,
SC17-1555 (Feb. 8, 2018), we conclude that because the record
shows multiple, discrete solicitations, Sherman cannot meet
his burden of showing that his separate convictions for
solicitation (in violation of section 847.0135(3)(a), Florida
Statutes) and traveling after solicitation (in violation of
section 847.0135(4)(a)) were "based on the same
conduct." See Lee, 223 So.3d at 351 (quoting
Shelley, 176 So.3d at 919).
Shelley, the supreme court held that separate
convictions for both solicitation and traveling after
solicitation cannot stand if they are based on the same
conduct. Id. The traveling and solicitation counts
both require proof that the defendant solicited a child (or
someone he thought was a child), and under Shelley,
a single solicitation cannot form the basis of both
convictions. See Lee, 223 So.3d at 351-52. But where
a defendant's conduct includes more than one
solicitation, Shelley does not require the State to
ignore all the solicitations but one. "Shelley
does not disturb well-established precedent allowing for
multiple punishments where a defendant commits multiple
criminal acts." Id. at 351. Instead, "the
holding in Shelley is limited to cases where the
defendant is convicted of both solicitation and traveling
after solicitation based on a single act of
case, the record demonstrates that Sherman's two
convictions did not turn on a single solicitation. Using two
separate email accounts, Sherman solicited a child (or
someone he thought was a child) several times before driving
to her house for sex. Sherman's multiple solicitations
justified his multiple charges and his multiple convictions.
This is therefore not about "uncharged conduct":
Sherman was charged with two crimes and convicted of two
crimes, and the State did not rely on the "same
conduct" for both. There is no double-jeopardy
and Winsor, JJ, concur; Makar, J, concur. concurs in result
dubitante with opinion.
J., concurring in result dubitante.
a mirror, this case looks just like State v.
Shelley, 176 So.3d 914 (Fla. 2015), which granted relief
to Shelley based on double jeopardy principles. Both Sherman
and Shelley were charged with a single count of unlawful use
of solicitation via computer service in violation of section
847.0135(3), Florida Statutes, and a single count of
traveling after solicitation to meet a minor in violation of
section 847.0135(4). As in Shelley, the State did not
charge Sherman with separate and distinct counts of
solicitation; only one count was charged. Under these
circumstances, Shelley holds that dual convictions
for these two offenses violates the Double Jeopardy
clauses because the charged solicitation count is
subsumed in the charged traveling after solicitation count.
Shelley's solicitation spanned "several days"
but Sherman's occurred on the same day that he
traveled to meet the fictitious minor,  making
Sherman's claim that much stronger.
got relief, but Sherman doesn't due to our decision in
Lee v. State, 223 So.3d 342, 351-52 (Fla. 1st DCA
2017), reh'g denied (Aug. 8, 2017), rev.
granted, SC17-1555 (Feb. 8, 2018), which does not limit
our review to charged conduct (here, the single count of
solicitation). Instead, our Court goes beyond charged conduct
and probes the record in search of additional uncharged
solicitations; if we can find two or more, the double
jeopardy evaporates, which is why conflict exists between
Lee and cases from other districts. As the Second
District in Shelley said:
The State asserts that because Shelley's three separate
uses of computer devices on the date charged in the
information would have supported three separate soliciting
charges, the soliciting charge is not subsumed by the
traveling charge. We are not persuaded by this argument. The
State only charged one use of computer devices to solicit,
and that charge was based on a solicitation occurring on the
same date as the traveling offense. We find no
legal basis to deny a double jeopardy challenge based on
uncharged conduct simply because it could have been
charged. But we acknowledge that convictions for ...