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Dygart v. State

Florida Court of Appeals, First District

May 18, 2018

Nathan Dygart, Appellant,
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. Jackie L. Fulford, Judge.

          Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.


          Winsor, J.

         In the fall of 2011, Nathan Dygart exchanged messages with someone he thought was a fourteen-year-old girl named Amber. The two discussed sports, television, and parents. They also discussed sex, Dygart becoming increasingly explicit. The discussions escalated, and Dygart eventually drove to Tallahassee's Killearn subdivision, where he planned to have sex with fourteen-year-old "Amber."

         When he arrived in Killearn, Dygart learned there was no "Amber"; he had been corresponding with a police detective involved in a sting operation. Officers arrested Dygart, and the State charged him with two crimes: one violation of section 847.0135(4)(a), which prohibits traveling for sex with a child (or someone thought to be a child) after using a computer to solicit a child for sex; and one violation of section 847.0135(3)(a), which prohibits using a computer to solicit a child (or someone thought to be a child) for sex, whether the perpetrator travels or not.

         A jury convicted Dygart on both counts, and the trial judge sentenced him to twenty-four months in prison, plus sex-offender probation. Dygart appealed, arguing insufficient evidence, entrapment, and double jeopardy, among others. This court affirmed with a short opinion that addressed only the double-jeopardy issue. Dygart v. State, 163 So.3d 1292 (Fla. 1st DCA 2015), quashed by Dygart v. State, 2016 WL 1700524 (Fla. Apr. 28, 2016). On that issue, the court concluded it was bound by this court's earlier precedent holding that "dual convictions for violation of sections 847.0135(3) and 847.0135(4), Florida Statutes (2011), do not violate double jeopardy." Id. The court noted, though, that the supreme court had granted review in another case involving this same issue. Id. (citing Shelley v. State, 134 So.3d 1138, 1140-42 (Fla. 2d DCA), review granted, 147 So.3d 527 (Fla. 2014)).

         In State v. Shelley, the supreme court held that separate convictions for solicitation and traveling after solicitation cannot stand if they are "based upon the same conduct." 176 So.3d 914, 919 (Fla. 2015). The court expressly disapproved our earlier decision in State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), which held the opposite, and on which we had relied in Dygart's initial appeal. See Dygart, 163 So.3d at 1292. The supreme court then quashed our initial Dygart decision, remanding for our reconsideration in light of Shelley. Dygart, 2016 WL 1700524. We again affirm.

         After Shelley, the law is clear that a single solicitation cannot support a conviction for solicitation and a separate conviction for traveling after solicitation. 176 So.3d at 919. Our task, then, is to determine whether Dygart's two convictions flowed from a single solicitation-whether they were "based upon the same conduct." Id.; see also Lee v. State, 223 So.3d 342, 351 (Fla. 1st DCA 2017) (en banc) ("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."), review granted, SC17-1555 (Feb. 8, 2018).

         Dygart bears the burden to show that the record demonstrates a double-jeopardy violation. Lee, 223 So.3d at 353; Sprouse v. State, 208 So.3d 785, 787 (Fla. 1st DCA 2016); Edwards v. State, 139 So.3d 981, 983 (Fla. 1st DCA 2014). Having reviewed the record, we conclude that Dygart has not met his burden. The record includes dozens of text messages over roughly twenty-four hours and included transmissions from which a jury could find multiple, discrete solicitations. Cf. § 847.0135(3), Fla. Stat. (2011) ("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."). This means Dygart cannot demonstrate that both of his convictions relied on the same specific solicitation, which means that Shelley does not require us to vacate either conviction.

         We do not disagree with the concurring opinion's observation that we should look to what the State charged. And nothing in Lee requires otherwise. Here, the State charged Dygart with one count of traveling (which includes as an element an act of solicitation), along with one count of solicitation (which likewise includes as an element an act of solicitation). We have no reason to assume that both counts are based on a single act of solicitation, particularly when the record shows Dygart committed multiple acts of solicitation. Nor can we accept the argument that an individual act of solicitation is not "charged" unless it is charged as a standalone solicitation, unconnected to any traveling violation. When the State charges traveling after solicitation, it is necessarily accusing the defendant of solicitation because solicitation is an element of the offense. See § 847.0135(4)(a), Fla. Stat. (2011) (prohibiting traveling for the purpose of engaging in unlawful sexual conduct "after using a computer online service [or other electronic means] to: (a) Seduce, solicit, lure, or entice" a person believed to be a child to engage in unlawful sexual conduct).

         Consider an example. Suppose a defendant solicits a minor over the Internet two separate times. No one would dispute that the defendant could be charged with two counts of solicitation; after all, he committed two separate offenses. Now suppose that after one of the two solicitations the same defendant travels to meet the minor for sex. Has he not still committed two separate offenses? Of course he has: one for the crime of solicitation (for the first solicitation, after which he did not travel) and one for traveling to meet the minor after the second solicitation. In this situation, the first offense turned on one solicitation, and the second offense turned on a second, independent solicitation. Shelley would not require us to presume there was only one solicitation when the record showed more. Instead, Shelley applies only when multiple convictions turn on the same solicitation. Shelley, 176 So.3d at 919 (finding double jeopardy violation when dual convictions for solicitation and traveling after solicitation were "based upon the same conduct"); Lee, 223 So.3d at 351-52 (noting that Shelley holding applies only when multiple convictions are "based on a single act of solicitation").

         Last, the concurring opinion notes that Dygart's jury was not instructed that it could convict on both counts only if it found two separate solicitations. But Dygart does not make that argument himself, and he did not preserve any challenge to the jury instructions. Nor has Dygart challenged the adequacy of the verdict form or the specificity of the charging document. He could have proposed different jury instructions below, objected to the verdict form, or filed a motion for a bill of particulars.[*] But we cannot reverse based on issues he did not preserve and does not ...

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