Morejon-Medina v. State, Case No. 2D18-3539

• Decision Date: 14 August 2019
• Docket Number: Case No. 2D18-3539
• Citation: 277 So.3d 1118
• Parties: Johandy MOREJON-MEDINA, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

277 So.3d 1118

Johandy MOREJON-MEDINA, Petitioner,
v.
STATE of Florida, Respondent.

Case No. 2D18-3539

District Court of Appeal of Florida, Second District.

Opinion filed August 14, 2019

Brett D. McIntosh and Kevin M. Griffith of Brett D. McIntosh, P.A., for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa (withdrew after briefing), Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record), for Respondent.

ATKINSON, Judge.

Johandy Morejon-Medina (Medina), in a petition filed under Florida Rule of Appellate Procedure 9.141(d), alleges that his appellate counsel was ineffective for failing to argue that his convictions violate double jeopardy under State v. Shelley, 176 So. 3d 914 (Fla. 2015). Although we disagree that counsel's performance was deficient at the time of the appeal, under current law Medina's convictions violate double jeopardy, constituting fundamental error on the face of the record that we are bound to correct.¹

On February 12, 2013, Medina responded to an online ad posted by a police officer posing as a girl looking for "fun guys" to "hang out" with in Sarasota. In the afternoon of February 13, the girl informed Medina that she was fourteen years old, and Medina acknowledged the girl's purported age the next day. In the afternoon of February 14, Medina steered the conversation towards sex and discussed sexual acts that he wanted to perform with the fourteen-year-old girl. On February 15, Medina reinitiated communication with the fourteen-year-old girl, stated that he wanted to perform sexual acts with her, and then arrived at the address she provided.

The State charged Medina with using a computer to solicit a child to commit a sex act (solicitation) "on or between February 12, 2013 and February 14, 2013," in violation of section 847.0135(3)(a), Florida Statutes (2012), and traveling after soliciting a child to commit a sex act (traveling after solicitation) "on or about February 15, 2013," in violation of section 847.0135(4)(a). After a jury found him guilty as charged, Medina was sentenced to concurrent terms of forty-two months' imprisonment followed by eighteen months' sex offender

277 So.3d 1120

probation. We affirmed his convictions. Medina v. State, 206 So. 3d 46 (Fla. 2d DCA 2016) (table).

To establish a claim of ineffective assistance of appellate counsel, the petitioner must show that counsel's performance was deficient—that it "deviated from the norm or fell outside the range of professionally acceptable performance." Downs v. Moore, 801 So. 2d 906, 909 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla 1985) ). The petitioner must also show prejudice—that appellate counsel's deficient performance "compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result." Id. at 909–10. "Although this court must apply the law in effect at the time of the appeal to determine whether counsel's performance was deficient, we must apply the current law to determine whether [the petitioner] is entitled to relief ...." Brown v. State, 25 So. 3d 78, 80 (Fla. 2d DCA 2009) (footnote omitted).

Medina argues that appellate counsel was ineffective for failing to argue on appeal, as trial counsel had unsuccessfully argued below, that his convictions for solicitation and traveling after solicitation violate double jeopardy under Shelley, which issued four months before counsel filed the initial brief. There, Shelley replied to a Craigslist ad posted by a police officer impersonating a mother "looking for family fun." Shelley, 176 So. 3d at 916 (quoting Shelley v. State, 134 So. 3d 1138, 1139 (Fla. 2d DCA 2014) ). Through electronic communications over the course of several days, Shelley arranged to have sex with the "mother" and her "ten-year-old daughter." Id. After Shelley was arrested at the agreed location, the State charged him with solicitation under section 847.0135(3)(b) and traveling after solicitation under section 847.0135(4)(b).² Id. at 916–17. The State alleged both offenses occurred on the same date. Id. at 917.

On appeal, we held that Shelley's convictions for solicitation and traveling after solicitation based upon the same conduct violated double jeopardy. Shelley, 134 So. 3d at 1142. The supreme court approved our decision and held that "because the statutory elements of solicitation are entirely subsumed by the statutory elements of traveling after solicitation, the...