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Sherman v. State

Florida Court of Appeals, First District

May 18, 2018

Tyler Sherman, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. James C. Hankinson, Judge.

          Ethan Andrew Way, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.

          ON REMAND FROM THE FLORIDA SUPREME COURT

          Per Curiam.

         This court previously affirmed Sherman's convictions, Sherman v. State, 160 So.3d 494 (Fla. 1st DCA 2015), but the supreme court quashed that decision and remanded for reconsideration in light of State v. Shelley, 176 So.3d 914 (Fla. 2015). On remand, we again affirm. As in today's decision in Dygart v. State, 1D13-4977 (Fla. 1st DCA May 18, 2018), and as required by our en banc decision in Lee v. State, 223 So.3d 342, 351-52 (Fla. 1st DCA 2017) (en banc), review granted, SC17-1555 (Feb. 8, 2018), we conclude that because the record shows multiple, discrete solicitations, Sherman cannot meet his burden of showing that his separate convictions for solicitation (in violation of 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).

         In Shelley, the supreme court held that separate convictions for both solicitation and traveling after solicitation cannot stand if they are based on the same conduct. Id. The traveling and solicitation counts both require proof that the defendant solicited a child (or someone he thought was a child), and under Shelley, a single solicitation cannot form the basis of both convictions. See Lee, 223 So.3d at 351-52. But where a defendant's conduct includes more than one solicitation, Shelley does not require the State to ignore all the solicitations but one. "Shelley does not disturb well-established precedent allowing for multiple punishments where a defendant commits multiple criminal acts." Id. at 351. Instead, "the holding in Shelley is limited to cases where the defendant is convicted of both solicitation and traveling after solicitation based on a single act of solicitation." Id.

         In this case, the record demonstrates that Sherman's two convictions did not turn on a single solicitation. Using two separate email accounts, Sherman solicited a child (or someone he thought was a child) several times before driving to her house for sex. Sherman's multiple solicitations justified his multiple charges and his multiple convictions. This is therefore not about "uncharged conduct": Sherman was charged with two crimes and convicted of two crimes, and the State did not rely on the "same conduct" for both. There is no double-jeopardy violation.

         Affirmed.

          Wolf and Winsor, JJ, concur; Makar, J, concur. concurs in result dubitante with opinion.

          Makar, J., concurring in result dubitante.

         Held to a mirror, this case looks just like State v. Shelley, 176 So.3d 914 (Fla. 2015), which granted relief to Shelley based on double jeopardy principles. Both Sherman and Shelley were charged with a single count of unlawful use of solicitation via computer service in violation of 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).[1] 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[2] 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, [3] making Sherman's claim that much stronger.

         Shelley 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 ...

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