Griffith v. State

• Decision Date: 13 January 2017
• Docket Number: Case No. 5D15–4203
• Citation: 208 So.3d 1208
• Parties: David Keith GRIFFITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

208 So.3d 1208

David Keith GRIFFITH, Appellant,
v.
STATE of Florida, Appellee.

Case No. 5D15–4203

District Court of Appeal of Florida, Fifth District.

Opinion filed January 13, 2017

James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, J.

After entering a nolo contendere plea to a six-count information, David Griffith appeals his judgments and sentences for one count of soliciting a child for unlawful sexual conduct using computer services or devices (count 1), and one count of traveling to meet a minor for illegal sexual conduct (count 2). Griffith contends that these two convictions violate the prohibition against double jeopardy. This Court has jurisdiction. Fla. R. App. P. 9.140(b)(2)(A)(ii)(e) ; Holubek v. State , 173 So.3d 1114, 1116 (Fla. 5th DCA 2015) (finding that defendant does not "specifically waive his right to appeal a double jeopardy violation by generally waiving his right to appeal at the plea colloquy").

On Monday, February 3, 2014, Griffith responded via email to a Craigslist post from a "Lonly clermont girl!" The Craigslist ad was placed by Detective Von McKenzie of the Lake County Sheriff's Office, posing as a thirteen-year-old girl named "Kelly." Griffith and "Kelly" communicated back and forth in an increasingly sexually explicit manner via email from 5:51 p.m. until 10:45 p.m. By the time the email exchanges ended that day, a tentative plan was made for "Kelly" and Griffith to meet for sexual conduct the following Friday.

The next day—Tuesday, February 4—at 5:14 a.m., Griffith emailed "Kelly" and asked, among other things, what time she woke up, where she lived, and whether sixty dollars would pay for a cell phone she wanted. At 9:00 a.m., "Kelly" responded and said that sixty dollars would be "awesome." Griffith replied, saying "So Friday, 60 dollars, where and what time?" Griffith then described the sex acts he hoped they would engage in when they met on Friday, February 7, 2014. Later that day, Griffith emailed "Kelly" again and she responded, saying that she had gotten "the nerve up" to meet him and asked him to come over that day. Griffith said he could meet her later that day by 6:00 p.m. More emails followed and, at 5:52 p.m., "Kelly" gave Griffith directions to her home and said she would meet him at the apartment complex's gate. When he arrived twenty minutes later, he was arrested.

The State charged Griffith in a six-count information, but only counts 1 and 2 are relevant to this appeal. In count 1, Griffith was charged with soliciting a child for unlawful sexual conduct using computer services or devices in violation of section 847.0135(3), Florida Statutes (2014), for his actions on February 3, 2014. In count 2, the State charged Griffith with traveling to meet a minor for illegal sexual conduct in violation of section 847.0135(4)(a), Florida Statutes (2014), for his actions on February

208 So.3d 1211

4, 2014. Griffith entered an open plea to all counts. During the plea colloquy, no mention was made about double jeopardy and none occurred at sentencing.

Generally, a defendant cannot raise a double jeopardy challenge for the first time on appeal. An exception to this rule applies if: (1) the defendant's plea is a general plea and not a plea bargain, (2) the double jeopardy violation is apparent on the face of the record, and (3) there is nothing in the record to indicate the defendant waived the double jeopardy violation. Novaton v. State , 634 So.2d 607, 609 (Fla. 1994). The burden of proving that a double jeopardy violation is apparent from the record is on the appellant. Edwards v. State , 139 So.3d 981, 983 (Fla. 1st DCA 2014). This burden is similar to the burden on a party bringing a motion to correct a sentence under Florida Rule of Criminal Procedure 3.800, who must "demonstrate an entitlement to relief on the face of the record." Williams v. State , 957 So.2d 600, 604 (Fla. 2007). In such motions, the movant must

affirmatively allege that the trial court records demonstrate on their face an entitlement to relief. A mere conclusory allegation that the answer lies in the record is insufficient to satisfy the pleading requirements of the rule. At a

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