FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petition Alleging Ineffective Assistance of Appellate
Counsel. Sarasota County; Thomas Krug, Judge.
D. McIntosh and Kevin M. Griffith of Brett D. McIntosh, P.A.,
Moody, Attorney General, Tallahassee, and Bilal Ahmed
Faruqui, Assistant Attorney General, Tampa (withdrew after
briefing), Allison C. Heim, Assistant Attorney General, Tampa
(substituted as counsel of record), for Respondent.
Morejon-Medina (Medina), in a petition filed under Florida
Rule of Appellate Procedure 9.141(d), alleges that his
appellate counsel was ineffective for failing to argue that
his convictions violate double jeopardy under State v.
Shelley, 176 So.3d 914 (Fla. 2015). Although we disagree
that counsel's performance was deficient at the time of
the appeal, under current law Medina's convictions
violate double jeopardy, constituting fundamental error on
the face of the record that we are bound to
February 12, 2013, Medina responded to an online ad posted by
a police officer posing as a girl looking for "fun
guys" to "hang out" with in Sarasota. In the
afternoon of February 13, the girl informed Medina that she
was fourteen years old, and Medina acknowledged the
girl's purported age the next day. In the afternoon of
February 14, Medina steered the conversation towards sex and
discussed sexual acts that he wanted to perform with the
fourteen-year-old girl. On February 15, Medina reinitiated
communication with the fourteen-year-old girl, stated that he
wanted to perform sexual acts with her, and then arrived at
the address she provided.
State charged Medina with using a computer to solicit a child
to commit a sex act (solicitation) "on or between
February 12, 2013 and February 14, 2013," in violation
of section 847.0135(3)(a), Florida Statutes (2012), and
traveling after soliciting a child to commit a sex act
(traveling after solicitation) "on or about February 15,
2013," in violation of section 847.0135(4)(a). After a
jury found him guilty as charged, Medina was sentenced to
concurrent terms of forty-two months' imprisonment
followed by eighteen months' sex offender probation. We
affirmed his convictions. Medina v. State, 206 So.3d
46 (Fla. 2d DCA 2016) (table).
establish a claim of ineffective assistance of appellate
counsel, the petitioner must show that counsel's
performance was deficient-that it "deviated from the
norm or fell outside the range of professionally acceptable
performance." Downs v. Moore, 801 So.2d 906,
909 (Fla. 2001) (quoting Wilson v. Wainwright, 474
So.2d 1162, 1163 (Fla 1985)). The petitioner must also show
prejudice-that appellate counsel's deficient performance
"compromised the appellate process to such a degree as
to undermine confidence in the fairness and correctness of
the appellate result." Id. at 909-10.
"Although this court must apply the law in effect at the
time of the appeal to determine whether counsel's
performance was deficient, we must apply the current law to
determine whether [the petitioner] is entitled to relief . .
. ." Brown v. State, 25 So.3d 78, 80 (Fla. 2d
DCA 2009) (footnote omitted).
argues that appellate counsel was ineffective for failing to
argue on appeal, as trial counsel had unsuccessfully argued
below, that his convictions for solicitation and traveling
after solicitation violate double jeopardy under
Shelley, which issued four months before counsel
filed the initial brief. There, Shelley replied to a
Craigslist ad posted by a police officer impersonating a
mother "looking for family fun." Shelley,
176 So.3d at 916 (quoting Shelley v. State, 134
So.3d 1138, 1139 (Fla. 2d DCA 2014)). Through electronic
communications over the course of several days, Shelley
arranged to have sex with the "mother" and her
"ten-year-old daughter." Id. After Shelley
was arrested at the agreed location, the State charged him
with solicitation under section 847.0135(3)(b) and traveling
after solicitation under section
847.0135(4)(b). Id. at 916-17. The State alleged
both offenses occurred on the same date. Id. at 917.
appeal, we held that Shelley's convictions for
solicitation and traveling after solicitation based upon the
same conduct violated double jeopardy. Shelley, 134
So.3d at 1142. The supreme court approved our decision and
held that "because the statutory elements of
solicitation are entirely subsumed by the statutory elements
of traveling after solicitation, the offenses are the same
for purposes of the Blockburger [v. United
States, 284 U.S. 299 (1932)] same-elements test . . . .
Therefore, double jeopardy principles prohibit separate
convictions based on the same conduct."
Shelley, 176 So.3d at 919.
case, the State acknowledges the supreme court's holding
in Shelley but argues that "convictions for
both soliciting and traveling may be legally imposed in cases
in which the State has charged and proven separate uses of
computer devices to solicit." Shelley, 134
So.3d at 1142. The State contends that it charged and proved
at trial that Medina committed separate acts of solicitation
on February 14 and February 15 before Medina traveled on
February 15 to the address provided by the fourteen-year-old
girl. As such, the State argues that Medina's
solicitation and traveling after solicitation convictions did
not violate double jeopardy because the State charged and
proved separate offenses that occurred on separate dates;
thus, Medina cannot show deficient performance by appellate
unlike Shelley, where the State alleged both
offenses occurred on the same date, the State alleged
separate dates in the separate counts. See Shelley,
176 So.3d at 917. The information identifies the solicitation
charge occurring "on or between February 12, 2013 and
February 14, 2013" and the traveling after solicitation
charge occurring "on or about February 15, 2013."
On its face, the information supports an interpretation that
the solicitation underlying the traveling charge happened on
February 15-a day other than the solicitation alleged to have
occurred between February 12 and February 14. Reading the
information to mean that the solicitation underlying the
traveling charge occurred on February 15, it follows that the
solicitation underlying the solicitation charge was a
separate act because that act could not have occurred any day
after February 14.
record supports this. It shows that, on February 14, Medina
used a computer device to solicit whom he believed to be a
child to participate in unlawful sexual conduct. The record
also shows that the next day, on February 15, Medina used a
computer device to solicit the purported child to engage in
unlawful sexual conduct before he traveled to meet the child.
In Shelley, the State relied on the record-which
showed that Shelley committed three separate acts of
solicitation on the same day-for its argument that the
solicitation charge was not subsumed by the traveling charge.
Shelley, 134 So.3d at 1141. We rejected this
argument, finding that the State could not rely on evidence
adduced at trial that might support separate offenses if the
State did not charge them separately in the information.
Id. at 1141-42 ("We find no legal basis to deny
a double jeopardy challenge based on uncharged conduct simply
because it could ...