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Newcombe v. State

Florida Court of Appeals, First District

December 6, 2019

Christopher Newcombe, 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. Martin A. Fitzpatrick, Judge.

          Mark V. Murray of Law Offices of Mark V. Murray, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

         On Remand from Florida Supreme Court

          Makar, J.

         In 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 Newcombe's situation.

         We 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.

         The 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.

         In 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.

         Affirmed.

          Lewis, J., concurs; B.L. Thomas, J., concurs in result with opinion.

          B.L. Thomas, J., concurring in result only.

         I agree 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.[1] 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 ...


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