Lee v. State

• Citation: 258 So.3d 1297
• Decision Date: 13 December 2018
• Docket Number: No. SC17-1555,SC17-1555
• Parties: Brian Mitchell LEE, Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

258 So.3d 1297

Brian Mitchell LEE, Petitioner,

v.STATE of Florida, Respondent.

No. SC17-1555

Supreme Court of Florida.

December 13, 2018

Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, Florida, for Respondent

PARIENTE, J.

In State v. Shelley , 176 So.3d 914 (Fla. 2015), this Court held that "dual convictions for solicitation and traveling after solicitation based upon the same conduct" violate double jeopardy. Id. at 919. Today, this Court is asked how a reviewing court should determine whether multiple convictions are based upon the same conduct. More specifically, the conflict issue in this case is whether, in determining if multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document or the entire evidentiary record.

In Lee v. State , 223 So.3d 342, 346 (Fla. 1st DCA 2017), the First District Court of Appeal, in an en banc opinion from which two judges dissented, held that it was appropriate for an appellate court to review the entire evidentiary record to determine whether multiple convictions violate double jeopardy. This holding is in conflict with decisions from the Second and Fifth District Courts of Appeal. See Thomas v. State , 209 So.3d 35 (Fla. 2d DCA 2016) ; Honaker v. State , 199 So.3d 1068 (Fla. 5th DCA 2016) ; Stapler v. State , 190 So.3d 162 (Fla. 5th DCA 2016) ; Holt v. State , 173 So.3d 1079 (Fla. 5th DCA 2015) ; and Mizner v. State , 154 So.3d 391 (Fla. 2d DCA 2014).¹

We hold that, consistent with Shelley , to determine whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document. Accordingly, we quash the decision of the First District and approve the conflict cases from the Second and Fifth Districts to the extent they are consistent with this opinion.²

FACTUAL BACKGROUND

The First District set forth the facts giving rise to Lee's convictions as follows:

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 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.

Lee , 223 So.3d at 346. Lee was charged by information with (1) one count of traveling to meet a minor to engage in sexual conduct,³ (2) one count of unlawful use of a two-way communications device to facilitate the commission of a felony,⁴ and (3) one count of using a computer to facilitate or solicit the sexual conduct of a child.⁵ Lee , 223 So.3d at 346. The information alleged that the traveling offense occurred on or about January 2, 2014, and that counts two and three occurred "on one or more occasions between December 22, 2013, and January 1, 2014." Id. at 354.

Lee moved to dismiss the charges, arguing that counts two and three violated double jeopardy because the elements of solicitation of a minor and unlawful use of a two-way communications device were subsumed within the elements of traveling after solicitation. Id. at 346. "The trial court denied the motion, and the case proceeded to trial." Id.

On a basic verdict form, the jury found Lee guilty of all three counts "as charged in the Information." The trial court sentenced Lee to a downward departure sentence of two years' community control, followed by thirteen years' probation. Id. at 347. Lee appealed to the First District, arguing that his convictions violated double jeopardy. Id. at 346.

A majority of the First District disagreed with Lee and held that there was no double jeopardy violation because Lee's "convictions were not based on the same conduct," but "arose from separate criminal episodes and distinct criminal acts." Id. In determining that Lee's convictions were not based on the same conduct, the First District examined "the entire record, including all evidence admitted at trial." Id. at 349. Accordingly, the First District affirmed Lee's convictions. Id. at 346.⁶ Judges Bilbrey and Makar wrote separate concurring in part and dissenting in part opinions, arguing that it was impossible to determine whether there was a double jeopardy violation because the information charging Lee did not allege distinct acts and the verdict form did not separate the acts.⁷

This review followed.

ANALYSIS

The issue in this case is whether, in determining if multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document or the entire evidentiary record. "Double jeopardy claims based on undisputed facts present questions of law and are subject to de novo review." Graham v. State , 207 So.3d 135, 137 (Fla. 2016).

I. Double Jeopardy Principles and Shelley

Double jeopardy "prohibits subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense." Valdes v. State , 3 So.3d 1067, 1069 (Fla. 2009). Both the United States and Florida Constitutions contain double jeopardy clauses. See U.S. Const. amend. V ; art. I, § 9, Fla. Const. "The prohibition against double jeopardy is ‘fundamental.’ " Lippman v. State , 633 So.2d 1061, 1064 (Fla. 1994) (quoting Benton v. Maryland , 395 U.S. 784, 795, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) ).

"Despite this constitutional protection, there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments." Valdes , 3 So.3d at 1069. Where "there is no clear statement of legislative intent to authorize or to prohibit separate punishments," courts employ the Blockburger⁸ same-elements test, codified in section 775.021(4), Florida Statutes (2018), to determine if there is a double jeopardy violation. Valdes , 3 So.3d at 1070. "This test ‘inquires whether each offense contains an element not contained in the other; if not, they are the same offense,’ and double jeopardy principles prohibit separate convictions and punishments based upon the same conduct." Shelley , 176 So.3d at 918 (quoting M.P. v. State , 682 So.2d 79, 81 (Fla. 1996) ).

There are three offenses at issue in this case—(1) solicitation of a minor, (2) unlawful use of a two-way communications device, (3) and traveling after solicitation. The solicitation statute provides in pertinent part:

(3) Certain uses of computer services or devices prohibited.—Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:

(a) Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child; ...

commits a felony ....

§ 847.0135(3)(a), Fla. Stat. (2013). The unlawful use of a two-way communications device statute states in full:

Any person who uses a two-way communications device, including, but not limited to, a portable two-way wireless communications device, to facilitate or further the commission of any felony offense commits a felony of the third degree ....

§ 934.215, Fla. Stat. (2013). Finally, the traveling after solicitation statute provides in pertinent part:

(4) Traveling to meet a minor.—Any person who travels any distance either within this state, to this state, or from this state by any means, who attempts to do so, or who causes another to do so or to attempt to do so for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:

(a) Seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to engage in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child; ... commits a felony ....

§ 847.0135(4)(a), Fla. Stat. (2013).

In Shelley , this Court concluded that "dual convictions for solicitation and traveling after solicitation based upon the same conduct" violate double jeopardy. 176 So.3d at 919.⁹ Similar to this case, the events in Shelley began on Craigslist and ended with the State charging Shelley with "a single violation" of soliciting a minor and "a single violation of" traveling after solicitation. Id. at 916-17. Significantly, this...