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. Martin A.
V. Murray of Law Offices of Mark V. Murray, Tallahassee, for
Moody, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellee.
Remand from Florida Supreme Court
2012, Christopher Newcombe was charged with one count of
unlawful use of a computer service to solicit a minor and one
count of traveling to meet a minor. In 2013, he entered a
plea of nolo contendere and was sentenced to five years in
prison and 15 years of sex offender probation. In 2015, he
filed a rule 3.850 post-conviction motion alleging, in part,
that his convictions for unlawful use of a computer service
and traveling to meet a minor violate double jeopardy. The
trial court denied relief and this Court affirmed on the
basis of Lee v. State, 223 So.3d 342 (Fla. 1st DCA
2017), a decision that has since been overturned. Lee v.
State, 258 So.3d 1297 (Fla. 2018). In light of its
decision, the supreme court has quashed the panel decision in
this case and remanded for reconsideration of Lee to
conclude that Newcombe is not entitled to post-conviction
relief because his decision to enter a plea
agreement differs from the situations in Lee
and in State v. Shelley, 176 So.3d 914, 919 (Fla.
2015), both of which were based on jury verdicts
founded upon a charging document limited to one count of
solicitation and one count of traveling after solicitation.
problem in both Lee and Shelley was that
the jury's dual convictions for solicitation and
traveling after solicitation were not based on separate and
distinct counts of solicitation in the charging document.
Absent separate and distinct counts of solicitation in the
charging document, the dual convictions for solicitation and
traveling after solicitation were necessarily based on the
same conduct. Evidence of uncharged solicitations was deemed
inadequate to support the verdict; instead, the charging
document must include separate and independent solicitation
counts to avoid a double jeopardy violation.
contrast, although Newcombe faced the same type of two count
information (one solicitation count and one traveling count)
as in Lee and Shelley, the basis for his
plea negotiations was broader than just the charging
document. It included not only the charging document but also
information about potential solicitations that could have
been charged, such as those mentioned in the probable cause
affidavit, but were not. Unlike the situation in Lee
and Shelley, where only charged conduct is allowable
at trial, plea negotiations are not so limited and can be
based on relevant but uncharged information. In the context
of plea negotiations, the charging document need not be as
strictly constructed as to those counts that might form the
basis for a double jeopardy violation. Here, for instance,
the charging document could have been drafted more broadly to
include two or more solicitation counts, making it likely
that Newcombe was willing to enter a plea as to the one count
of solicitation and the one count of traveling presented, and
that he accepted that a factual basis existed for doing so,
as the trial judge noted.
J., concurs; B.L. Thomas, J., concurs in result with opinion.
Thomas, J., concurring in result only.
that relief should be denied, but I concur in result only
with the majority opinion, because Lee v. State, 223
So.3d 342 (Fla. 1st DCA 2017), rev'd, 258 So.3d
1297 (2018) is not retroactive under Witt v. State,
387 So.2d 922 (Fla. 1980). I also concur in result only to
recommend that the Florida Supreme Court recede from the
rationale of that decision. I respectfully recommend that the
supreme court adopt the views expressed in Judge
Winokur's concurring opinion in this court's decision
in Lee, which correctly states that a claimed
double-jeopardy violation based on multiple punishments can
only be raised at ...