Shelley v. State

134 So. 3d 1138, 2014 WL 1047074, 2014 Fla. App. LEXIS 3971
CourtDistrict Court of Appeal of Florida
DecidedMarch 19, 2014
DocketNo. 2D13-1941
StatusPublished
Cited by40 cases

This text of 134 So. 3d 1138 (Shelley v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelley v. State, 134 So. 3d 1138, 2014 WL 1047074, 2014 Fla. App. LEXIS 3971 (Fla. Ct. App. 2014).

Opinion

SILBERMAN, Judge.

Dean Shelley responded to a Craigslist ad posted in the Casual Encounters section by a police officer posing as a single mother nudist “looking for family fun.” Shelley made arrangements via electronic communication to have sex with the “mother’s” fictitious ten-year-old daughter and was arrested when he arrived at the predetermined meeting place. In this appeal, Shelley seeks review of his convictions for (1) use of computer services or devices to solicit consent of a parent or legal guardian, and (2) traveling to meet a minor after using computer services or devices to solicit consent of a parent or legal guardian. We affirm in part and reverse in part.

Shelley entered guilty pleas to the charges while reserving his right to appeal the denial of a motion to dismiss and amended motion to dismiss. Shelley argues that the trial court erred in denying the motion to dismiss because the undisputed facts failed to establish a prima facie case of the crimes. Shelley also argues that the trial court erred in denying the amended motion to dismiss because his convictions violate the prohibition against double jeopardy. We address these arguments in turn.

I. Prima Facie Case

Shelley argues that the undisputed facts do not establish that he actually contacted a child or a person he believed to be a child. We recognize that the then-applicable standard jury instructions for both offenses required that the defendant use a computer to contact the person believed to be the child victim. See Fla. Std. Jury Instr. (Crim.) 11.17(b), (d) (2009). However, the applicable statutes, which are controlling, do not contain this requirement. See § 847.0135(3)(b), (4)(b), Fla. Stat. (2011); State v. Wilson, 128 So.3d 946, 948 (Fla. 5th DCA 2013). The supreme court has recently approved amendments to the standard jury instructions that cure the errors. See In re Standard Jury Instructions in Criminal Cases-Report No. 2012-09, 122 So.3d 263, 276, 279 (Fla.2013).

Shelley also argues that the undisputed facts fail to establish that he solicited, lured, or enticed a parent to consent to a child’s participation in the illegal conduct. Shelley claims that his conduct on the date charged in the information did not constitute soliciting, luring, or enticing because the plan to engage in illicit sexual contact was set in motion before that date. And he claims that the undercover officer was the person who did the soliciting, luring, and enticing.

Both of these arguments have been rejected by our sister courts. See Hartley v. State, 129 So.3d 486, 489-90 (Fla. 4th DCA 2014) (holding that certain text exchanges on specific dates constituted soliciting even though they were merely confirming plans established on another date to meet the [1140]*1140child for a sexual encounter); State v. Murphy, 124 So.3d 323, 328-29 (Fla. 1st DCA 2013) (rejecting the argument that the defendant did not solicit a parent’s consent because an officer was posing as the parent and had placed the Craigslist ad). Accordingly, the trial court did not err in rejecting Shelley’s challenges to the State’s prima facie case and denying the motion to dismiss.

II. Double Jeopardy

Shelley argues that his convictions for soliciting and traveling violate the constitutional prohibition against double jeopardy. Shelley asserts that the elements of soliciting under section 847.0135(3)(b) are subsumed by the elements of traveling under section 847.0135(4)(b). The State does not dispute that the soliciting offense is subsumed by the traveling offense but argues that the dual convictions are proper because the legislature intended to allow multiple punishments for the crimes.

We conduct a de novo review of a double jeopardy claim based on undisputed facts. Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006). “ ‘The prevailing standard for determining the constitutionality of multiple convictions 'for offenses arising from the same criminal transaction is whether the Legislature “intended to authorize separate punishments for the two crimes.” ’ ” Valdes v. State, 3 So.3d 1067, 1070 (Fla.2009) (quoting Gordon v. State, 780 So.2d 17, 19 (Fla.2001)). The legislative intent may “be explicitly stated in a statute.” M.P. v. State, 682 So.2d 79, 81 (Fla.1996). If there is no explicit legislative intent to allow separate punishments for two crimes arising out of the same criminal transaction, courts must apply the Blockburger1 test as codified in section 775.021(4), Florida Statutes (2011), to determine whether the legislature intended to allow separate punishments. M.P., 682 So.2d at 81.

In this case, section 847.0135(3)(b) expressly provides, “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.” Thus, there is an explicit statement of the legislature’s intent to authorize multiple punishments for each violation of section 847.0135(3)(b).

However, there is no explicit statement of intent to authorize multiple punishments for conduct that violates both section 847.0135(3)(b) and section 847.0135(4)(b). We recognize that the First District has reached the opposite conclusion. See Murphy, 124 So.3d at 330-31. The Murphy court reasoned that, by separately establishing and defining soliciting and traveling in different sections of the statute, the legislature expressed its intent to allow for multiple punishments for the crimes. Id. at 330.

We do not agree that the placement of the offenses in separate provisions constitutes an explicit statement of intent for purposes of a double jeopardy analysis. Compare M.P., 682 So.2d at 82 (holding that the legislature explicitly stated its intent to allow multiple punishments by providing “that ‘[t]he provisions of this section are supplemental to all other provisions of law1 ” (quoting § 790.22(7), Fla. Stat. (Supp.1994))), with Gorday v. State, 907 So.2d 640, 644 (Fla. 3d DCA 2005) (holding that there was “nothing in the language, structure, or legislative history of the credit card theft statute” that established an intent to allow for convictions under both the credit card statute and the armed robbery statute for an armed robbery of a purse containing a credit card).

[1141]*1141There being no explicit statement of intent, we must proceed to a Blockburger analysis under section 775.021(4). Under that section, the legislature provided for three exceptions to the general rule authorizing multiple convictions for separate criminal offenses committed in the course of one criminal transaction or episode. Id. The exception that Shelley argues applies in this case is for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b)(3).

To determine whether this exception applies we must analyze whether the soliciting offense contains an element that is not found in the traveling offense. See Pinder v. State, 128 So.3d 141, 142-48 (Fla. 5th DCA 2018). The soliciting offense is set forth in section 847.0135(3)(b) and provides, in pertinent part:

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Bluebook (online)
134 So. 3d 1138, 2014 WL 1047074, 2014 Fla. App. LEXIS 3971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelley-v-state-fladistctapp-2014.