DERRELL A. RICHARDSON, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Manatee County; Susan Maulucci, Judge.
Derrell A. Richardson, pro se.
Moody, Attorney General, Tallahassee, and Jonathan Hurley,
Assistant Attorney General, Tampa, for Appellee.
Richardson appeals from an order summarily denying his
six-ground motion for postconviction relief under Florida
Rule of Criminal Procedure 3.850. We affirm the summary
denial of claims one through five without comment. We reverse
the summary denial of ground six-which alleged that Mr.
Richardson's dual convictions and sentences for
soliciting a child and traveling to meet a child violated
double jeopardy-and remand for further proceedings.
State charged Mr. Richardson with using a computer to seduce,
solicit, lure, or entice a minor to commit a sex act "on
one or more occasions between" September 14, 2012, and
September 15, 2012, and with traveling to meet a minor after
using a computer to seduce, solicit, lure, or entice a minor
to commit a sex act on September 15, 2012. §
847.0135(3)(a), (4)(a), Fla. Stat. (2012). A jury found Mr.
Richardson guilty of both crimes, and the trial court
sentenced him to concurrent terms of five years'
imprisonment and seven years' imprisonment followed by
three years' sex offender probation. Mr. Richardson
appealed from his convictions and sentences. We affirmed
without a written opinion. Richardson v. State, 177
So.3d 261 (Fla. 2d DCA 2015) (table decision).
ground six of his postconviction motion, Mr. Richardson
asserted that his convictions and sentences for the two
offenses violate the prohibition against double jeopardy, as
explained by the supreme court in State v. Shelley,
176 So.3d 914 (Fla. 2015). Rule 3.850 is an appropriate
vehicle for such a claim. See Wilson v. State, 693
So.2d 616, 617 n.2 (Fla. 2d DCA 1997) ("Double jeopardy
claims are appropriately brought under rule 3.850.");
see also Rodriguez v. State, 162 So.3d 1162, 1164-65
(Fla. 5th DCA 2015) (reversing the summary denial of a rule
3.850 claim that asserted ineffective assistance of counsel
in regard to a Shelley-related double-jeopardy
issue). In Shelley, the supreme court held that
double jeopardy prohibits dual convictions for traveling and
soliciting where the two offenses arise out of the same
conduct. 176 So.3d at 917-20. The issue with which the
postconviction court grappled in summarily denying ground six
of Mr. Richardson's motion was whether the two offenses
of which he was convicted-which apparently occurred over the
course of two days and involved some temporal
separation-arose from the same conduct such that they
implicated the holding in Shelley.
postconviction court held that the two offenses did not arise
from the same conduct. Relying extensively upon the First
District's decision in Lee v. State, 223 So.3d
342, 348 (Fla. 1st DCA 2017) (en banc), quashed, 258
So.3d 1297 (Fla. 2018), the court held that it was required
to apply a three-part test to determine whether the dual
convictions violated double jeopardy, considering (1) whether
the offenses occurred during the same criminal episode, if
so, (2) whether the convictions are predicated on discrete
acts, and if not, (3) whether the separate charges pass the
tests of Blockburger v. United States, 284 U.S. 299
(1932), and section 775.021, Florida Statutes. See
Lee, 223 So.3d at 348. The postconviction court
explained that the first part of the test required it to
consider whether there were multiple victims, whether the
offenses occurred in multiple offenses, and whether there was
a temporal break separating the offenses, and the second part
of the test required consideration of any temporal break,
intervening acts, changes in location, and formations of new
criminal intent. Applying those factors to the evidence
adduced at Mr. Richardson's trial, the postconviction
court held that the offenses did not occur during the same
criminal episode and, at all events, that they were
predicated on discrete acts.
the postconviction court's decision in this case, the
supreme court quashed the First District's decision in
Lee. Lee v. State, 258 So.3d 1297, 1304
(Fla. 2018). The supreme court held that "to determine
whether multiple convictions of solicitation of a minor . . .
and traveling after solicitation of a minor are based upon
the same conduct for purposes of double jeopardy, the
reviewing court should consider only the charging
document-not the entire evidentiary record."
Id. at 1304. It explained that "[a] reviewing
court's ability to find evidence in the record to support
multiple convictions is insufficient to defeat a double
jeopardy claim when nothing in the charging document suggests
that the convictions were based on separate
conduct."Id. at 1303-04. The supreme
court's decision in Lee makes clear that the
analysis the postconviction court applied in summarily
denying ground six of Mr. Richardson's rule 3.850 motion
was legally inaccurate.
these reasons, we reverse the postconviction court's
order to the extent it summarily denied ground six of Mr.
Richardson's motion and remand for it to reconsider that
ground. We affirm the order in all other respects.
in part, reversed in part, and remanded.
SILBERMAN and ...