Lee v. State, CASE NO. 1D15-0943

CourtFlorida District Court of Appeals
Writing for the CourtROWE, J.
PartiesBRIAN MITCHELL LEE, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant.
Decision Date01 June 2017
Docket NumberCASE NO. 1D15-0943,CASE NO. 1D15-0945

BRIAN MITCHELL LEE, Appellant/Cross-Appellee,
v.
STATE OF FLORIDA, Appellee/Cross-Appellant.

CASE NO. 1D15-0943
CASE NO. 1D15-0945

DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

June 1, 2017


NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Escambia County.
Terry D. Terrell, Judge.

Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant/Cross-Appellee.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.

ON MOTION FOR REHEARING EN BANC

ROWE, J.

We grant the State's motion for rehearing en banc, vacate our prior opinion issued on November 28, 2016, and substitute the following opinion:

Brian Mitchell Lee challenges his convictions for (1) traveling to meet a minor to engage in sexual conduct; (2) the unlawful use of a two-way communications

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device to facilitate the commission of a felony; and (3) using a computer to facilitate or solicit the sexual conduct of a child. We affirm as to all issues raised by Lee, but write to address only one. He argues that the decisions in State v. Shelley, 176 So. 3d 914 (Fla. 2015), and Hamilton v. State, 163 So. 3d 1277 (Fla. 1st DCA 2015), compel reversal of two of his convictions on double jeopardy grounds. The State seeks review of the trial court's departure sentence in a separate appeal.1

We affirm Lee's convictions for all three offenses because, unlike in Shelley and Hamilton, his multiple convictions were not based on the same conduct. Rather, Lee's convictions arose from separate criminal episodes and distinct criminal acts; thus, they do not violate the prohibition against double jeopardy. But we reverse Lee's sentences and remand for resentencing because the trial court improperly departed downward when imposing the sentences.

I. Facts & Procedural History

Lee placed an ad in the Casual Encounters section of Craigslist, seeking an encounter with a male "under 25" years old. An investigator presenting himself as "Matt" responded to Lee's ad after he determined the ad could be an effort to initiate contact with a minor. The investigator promptly informed Lee that "Matt" was only fourteen years old. But even after learning that "Matt" was a minor, Lee continued

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the communications. Over the course of the next eleven days, the two exchanged multiple emails and Lee proposed that the two engage in various sexual acts. On the twelfth day, Lee asked to meet "Matt" in person. When Lee arrived at the agreed-upon location, he was met by law enforcement and arrested. A search of his truck revealed erectile dysfunction medications.

The State charged Lee by information with three felony offenses: traveling to meet a minor to engage in sexual conduct, unlawful use of a two-way communications device to facilitate the commission of a felony, and using a computer to facilitate or solicit the sexual conduct of a child. Lee moved to dismiss the charges, arguing that counts one and three violated double jeopardy, because the elements of solicitation were subsumed within the offense of traveling to meet a minor. He also argued that counts one and two violated double jeopardy, because the elements of using a two-way communications device were subsumed within the offense of traveling, and that both offenses occurred within a single episode. The trial court denied the motion, and the case proceeded to trial.

Through the testimony of the investigating officer, the State introduced into evidence the entire transcript of the communications between Lee and "Matt." The testimony demonstrated that the communications occurred over the course of twelve days and involved multiple acts of solicitation.

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After the State rested, Lee admitted during his testimony that the transcript of communications introduced into evidence was accurate. He asserted that he placed the ad on Craigslist to meet adult males. He declared that he was certain that "Matt" was a police officer from the beginning, but decided to play along because he wanted to "get back" at the police for targeting homosexuals in these types of undercover operations. Dr. Julie Harper, a clinical and forensic psychologist, testified that Lee had a narcissistic and obsessive compulsive personality and that he had previously been diagnosed with depression. She described Lee, a family physician, as highly intelligent with a lot of inner pain and low self-esteem.

The jury returned a guilty verdict on all three counts, and the case proceeded to sentencing. Lee's Criminal Punishment Code scoresheet established a minimum permissible sentence of forty-five months' imprisonment. He filed a sentencing memorandum, requesting a downward departure based on several non-statutory mitigators. At sentencing, Lee presented the testimony of two employees, four former patients, and his brother. Defense counsel argued that the trial court should downwardly depart because Lee never had sexual contact with a minor, he showed great potential for rehabilitation, he maintained a close relationship with his family, and he lacked any history of prior criminal activity. The State specifically argued that none of those factors warranted the imposition of a downward departure sentence and argued against the trial court imposing such a sentence. The State

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argued that Lee was a danger to the community and that the court should impose a sentence of no less than five years' imprisonment.

Before imposing Lee's sentences, the trial court noted that Lee had virtually no prior criminal record and that it had not been proven that Lee had any inappropriate physical contact with a child. The court observed that it was uncontradicted that Lee was suffering from depression when he committed these crimes. The court also considered that countless patients continued to seek treatment from Lee during the pendency of these charges.

The court departed downward, declining to impose a term of imprisonment, instead sentencing Lee to concurrent terms of two years' community control followed by thirteen years' probation. On the Criminal Punishment Code scoresheet, the trial court specified that the departure sentence was based on the statutory mitigator that Lee required specialized treatment for a mental disorder that was unrelated to substance abuse or addiction. The court further indicated its reliance on the non-statutory mitigators announced at the sentencing hearing. This appeal and cross-appeal follow.

II. Analysis

We begin our analysis with a discussion of double jeopardy principles, including: (i) which party bears the burden to demonstrate a double jeopardy violation; (ii) the three-step test to be applied to determine whether multiple

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convictions violate the prohibition against double jeopardy; and (iii) the factors and evidence to be considered when applying the three-step test. Next, we explain why the holdings in Shelley and Hamilton have no application to our double jeopardy analysis in this case. Then, we apply these principles to explain why Lee's multiple convictions do not violate the prohibition against double jeopardy. Finally, we explain why the trial court erred in imposing the downward departure sentence.

A. Double Jeopardy Principles

The Double Jeopardy Clause provides protection from three separate types of double jeopardy. "[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Ohio v. Johnson, 467 U.S. 493, 498 (1984) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Here, Lee argues that he received multiple punishments for the same offense; thus our analysis concerns this type of double jeopardy claim.

i. Burden to Demonstrate a Double Jeopardy Violation

The party alleging error bears the burden to demonstrate reversible error on appeal. See Stone v. Stone, 873 So. 2d 628, 630 (Fla. 2d DCA 2004). And when it is a defendant appealing a trial court's ruling, "the defendant bears the burden of demonstrating that an error occurred in the trial court." Jones v. State, 923 So. 2d

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486, 488 (Fla. 2006) (quoting Goodwin v. State, 751 So. 2d 537, 544 (Fla. 1999)). A defendant alleging a double jeopardy violation is in no different position; it remains the defendant's burden to establish that a double jeopardy violation has occurred. See Sprouse v. State, 208 So. 3d 785, 787 (Fla. 1st DCA 2016) ("Sprouse has not met his burden of showing his multiple convictions violate double jeopardy."); Edwards v. State, 139 So. 3d 981, 983 (Fla. 1st DCA 2014) ("The burden of proof was Edwards' to demonstrate error in this case."); see also Capron v. State, 948 So. 2d 954, 957 (Fla. 5th DCA 2007) (observing that a defendant bears the burden of proving a double jeopardy violation). And after a jury trial, the burden to demonstrate error is especially heavy as the reviewing court must view "the evidence in the light most favorable to the jury verdict." Williams v. State, 90 So. 3d 931, 933 (Fla. 1st DCA 2012).

ii. Three-Step Test for Analyzing Double Jeopardy Claims
Alleging Multiple Punishments

A court reviewing a double jeopardy claim alleging multiple punishments must apply a three-step test. State v. Paul, 934 So. 2d 1167, 1172-73 (Fla. 2006). We explained how the test should be applied in Partch v. State, 43 So. 3d 758, 760 (Fla. 1st DCA 2010): First, we must determine whether the convictions "were based on an act or acts which occurred within the same criminal transaction and/or episode." Id. Second, if the convictions arose from the same criminal episode, we "must then determine if the convictions were predicated on distinct acts." Id. Third,

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"[i]f the charges are not predicated on distinct acts and have occurred within the same criminal...

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