Dettle v. State
| Decision Date | 25 May 2017 |
| Docket Number | CASE NO.: 1D14-1382. |
| Citation | 226 So.3d 285 (Mem) |
| Parties | Matthew Joseph DETTLE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s) |
| Court | Florida District Court of Appeals |
BY ORDER OF THE COURT:
Appellant's motion for rehearing or certification, filed January 31, 2016, is denied.
I respectfully dissent from the denial of Appellant's motions for rehearing and to certify a question to the Florida Supreme Court as to the issue of double jeopardy. However, I believe Appellant has conflict jurisdiction for Florida Supreme Court review based on our original decision, which conflicts with State v. Shelley, 176 So.3d 914, 919 (Fla. 2015),1 as well as numerous cases from other Florida district courts as discussed below.
Appellant challenges his convictions, after jury trial and guilty verdicts, of 1) traveling to meet a person believed to be a child after using a computer or device capable of electronic data storage to solicit unlawful sexual conduct, pursuant to section 847.0135(4)(a), Florida Statutes (2012) ; 2) use of a computer online service or other device capable of electronic data storage to seduce, solicit, lure, or entice, a person he believed to be a child, under section 847.0135(3)(a), Florida Statutes (2012) ; and 3) unlawful use of a two-way communication device (cell phone) to further the commission of a felony, under section 934.215, Florida Statutes (2012). In our original opinion we properly rejected four of the issues raised by Appellant. In the original decision we also rejected—incorrectly I now believe—part of his fifth issue that the multiple convictions of the "same offense" based on the same conduct constitute double jeopardy. Accordingly, I would affirm Appellant's conviction for the greater offense of traveling to meet a person believed to be a child after using a computer or device capable of electronic data storage to solicit unlawful sexual conduct, pursuant to section 847.0135(4)(a), Florida Statutes, and vacate the convictions and sentences for the lesser offenses in both counts II and III.2
This case is the result of a strategic ruse by the Alachua County Sheriff's Office where law enforcement personnel placed an advertisement for legal social interaction,3 to which Appellant responded. Appellant and the officer then engaged in e-mail and text communications. In the third exchange of messages—less than three hours after Appellant's first response—the officer claimed to be a 14–year-old girl, and Appellant clearly believed that he was sending messages to a minor. Appellant continued to communicate with the fictitious minor and he initiated the suggestion of sexual activity on the second day after his initial response to the advertisement.4
The content of the ensuing messages over the following two weeks, from July 19 to August 3, 2012, and the fact that Appellant drove over 100 miles on August 3, 2012, to the address provided by the officer as the residence of the supposed 14–year-old, were not in question. What is in question on appeal is the legal issue of whether the convictions for all three offenses as charged in the three-count information withstand constitutional scrutiny under a double jeopardy analysis and current governing case law. "A determination of whether double jeopardy is violated based on undisputed facts is a legal determination; thus, this Court's review is de novo." State v. Drawdy, 136 So.3d 1209, 1213 (Fla. 2014). Appellant unsuccessfully raised the issue of double jeopardy during the jury instruction conference, at sentencing, and in a postconviction motion raising sentencing error. Even if he had not raised the issue, "a violation of a defendant's substantive double jeopardy rights constitutes fundamental error [which] may be raised for the first time on appeal." Holt v. State, 173 So.3d 1079, 1081 (Fla. 5th DCA 2015) ().
Count I of the information alleged that the traveling offense occurred "on or about August 3, 2012." Counts II and III alleged that the computer online solicitation and the use of a two-way communication device to further the commission of a felony took place "from, on, or between July 21, 2012 through, on, or about August 3, 2012." The evidence adduced at trial included multiple communications between Appellant and the Alachua County Sheriff's deputy posing as the minor, several of which were sufficient to prove solicitation of unlawful sexual conduct and use of a two-way communication device to further the commission of a felony. However, there is no way to be certain that Appellant was not convicted in violation of double jeopardy of the same acts he committed on August 3, 2012, when the Appellant traveled after soliciting and unlawfully used a two-way communication device to solicit the purported minor.
As explained by the Florida Supreme Court, Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009). The U.S. Supreme Court summarized the test to determine whether there are "two offenses or only one" in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This " Blockburger test" to determine if multiple convictions and punishments are for "the same offense" or separate offenses is codified in section 775.021(4), Florida Statutes, which provides in part:
Florida courts have applied the Blockburger test to the offenses described in sections 847.0135(3), 847.0135(4), and 934.215, Florida Statutes, in cases similar to this one—where a defendant engages in electronic and cell phone communications with a law enforcement officer posing as a minor, solicits the supposed minor for unlawful sexual conduct, and travels after the solicitation for the purpose of engaging in the unlawful sexual conduct. The Florida Supreme Court has deemed the offenses set out in sections 847.0135(3) (soliciting a minor) and 847.0135(4) (traveling after soliciting a minor) "the same for purposes of the Blockburger same-elements test codified in section 775.021(4), Florida Statutes." Shelley, 176 So.3d at 919. Likewise, this court has deemed the violation of sections 847.0135(4) and 934.215 to be the same offenses under the Blockburger test because " ‘the proof of the unlawful use of a two-way communications device was subsumed within the proof of the soliciting and traveling offenses in this case.’ " Hamilton v. State, 163 So.3d 1277, 1278 (Fla. 1st DCA 2015) (quoting Mizner v. State, 154 So.3d 391 (Fla. 2d DCA 2014) ); see also Batchelor v. State, 193 So.3d 1054 (Fla. 2d DCA 2016) ; Holubek v. State, 173 So.3d 1114 (Fla. 5th DCA 2015).
"However, the prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts." Hayes v. State, 803 So.2d 695, 700 (Fla. 2001) (). Courts have looked to the allegations in the charging documents, the provisions of the verdict forms, and the proof adduced at trial to determine if distinct criminal acts to support the dual convictions were proven by the State.
For example, in State v. Meshell, 2 So.3d 132 (Fla. 2009), dual convictions for lewd and lascivious battery were affirmed where the acts occurred within seconds of each other, but the information alleged different anatomical combinations. As the Florida Supreme Court in Meshell observed, "Florida courts have focused on whether the acts forming the basis of the charges are ‘distinct.’ " Id. at 134. "Distinct acts" are "acts of a separate character and type requiring different elements of proof." Id. at 135. On the other hand, where "neither the charging information nor the jury verdict form included language clearly predicating the disputed charges on two distinct sex acts," it was "impossible for this court to know if the jury convicted appellant for one act of sexual battery or two distinct acts" when the evidence produced at trial showed overlapping acts. Partch v. State, 43 So.3d 758, 761–62 (Fla. 1st DCA 2010). Accordingly, in Partch, the "distinct acts exception" to the double jeopardy rule did not apply and the conviction was reversed. Id. at 763. See also Graham v. State, 170 So.3d 141, 143 (Fla. 1st DCA 2015), aff'd , 207 So.3d 135 (Fla. 2016) (...
To continue reading
Request your trial