Newcombe v. State
| Decision Date | 06 December 2019 |
| Docket Number | No. 1D16-4769,1D16-4769 |
| Parties | CHRISTOPHER NEWCOMBE, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
On appeal from the Circuit Court for Leon County.
In 2012, Christopher Newcombe was charged with one count of unlawful use of a computer service to solicit a minor and one count of traveling to meet a minor. In 2013, he entered a plea of nolo contendere and was sentenced to five years in prison and 15 years of sex offender probation. In 2015, he filed a rule 3.850 post-conviction motion alleging, in part, that his convictions for unlawful use of a computer service and traveling to meet a minor violate double jeopardy. The trial court denied relief and this Court affirmed on the basis of Lee v. State, 223 So. 3d 342 (Fla. 1st DCA 2017), a decision that has since been overturned. Lee v. State, 258 So. 3d 1297 (Fla. 2018). In light of its decision, the supreme court has quashed the panel decision in this case and remanded for reconsideration of Lee to Newcombe's situation.
We conclude that Newcombe is not entitled to post-conviction relief because his decision to enter a plea agreement differs from the situations in Lee and in State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015), both of which were based on jury verdicts founded upon a charging document limited to one count of solicitation and one count of traveling after solicitation.
The problem in both Lee and Shelley was that the jury's dual convictions for solicitation and traveling after solicitation were not based on separate and distinct counts of solicitation in the charging document. Absent separate and distinct counts of solicitation in the charging document, the dual convictions for solicitation and traveling after solicitation were necessarily based on the same conduct. Evidence of uncharged solicitations was deemed inadequate to support the verdict; instead, the charging document must include separate and independent solicitation counts to avoid a double jeopardy violation.
In contrast, although Newcombe faced the same type of two count information (one solicitation count and one traveling count) as in Lee and Shelley, the basis for his plea negotiations was broader than just the charging document. It included not only the charging document but also information about potential solicitations that could have been charged, such as those mentioned in the probable cause affidavit, but were not. Unlike the situation in Lee and Shelley, where only charged conduct is allowable at trial, plea negotiations are not so limited and can be based on relevant but uncharged information. In the context of plea negotiations, the charging document need not be as strictly constructed as to those counts that might form the basis for a double jeopardy violation. Here, for instance, the charging document could have been drafted more broadly to include two or more solicitation counts, making it likely that Newcombe was willing to enter a plea as to the one count of solicitation and the one count of traveling presented, and that he accepted that a factual basis existed for doing so, as the trial judge noted.
AFFIRMED.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
I agree that relief should be denied, but I concur in result only with the majority opinion, because Lee v. State, 223 So. 3d 342 (Fla. 1st DCA 2017), rev'd, 258 So. 3d 1297 (2018) is not retroactive under Witt v. State, 387 So. 2d 922 (Fla. 1980). I also concur in result only to recommend that the Florida Supreme Court recede from the rationale of that decision.1 I respectfully recommend that the supreme court adopt the views expressed in Judge Winokur's concurring opinion in this court's decision in Lee, which correctly states that a claimed double-jeopardy violation based on multiple punishments can only be raised at sentencing and logically must be based on the facts established at trial, not by a pre-trial motion which cannot assert factual claims that multiple criminal acts were not committed.
The supreme court's decision in Lee2 should not be applied retroactively. In general, decisions of the Florida Supreme Court in criminal cases establishing a new rule of law are not retroactive,unless the decision creates a new fundamental constitutional right that the court holds must apply retroactively. See Witt v. State, 387 So. 2d at 925.
The rationale and rule of State v. Glenn resolves the issue in this case. 558 So. 2d 4, 6-7 (Fla. 1990) (). Most "'jurisprudential upheavals' in the law fall within two broad categories . . . which are of such significant magnitude as to necessitate retroactive application as determined by the three-prong test applied in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)." Id. at 6. By contrast, mere "evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters . . . do not compel an abridgment of the finality of judgments." Id. (citing Witt, 387 So. 2d at 929-30).
As the supreme court emphasized in Witt, this limitation of retroactivity in postconviction cases must be scrupulously honored so as to not jeopardize finality and the rule of law:
The importance of finality in any justice system, including the criminal justice system, cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end. In terms of the availability of judicial resources, cases must eventually become final simply to allow effective appellate review of other cases. There is no evidence that subsequent collateral review is generally better than contemporaneous appellate review for ensuring that a conviction or sentence is just. Moreover, an absence of finality casts a cloud of tentativeness over the criminal justice system, benefiting neither the person convicted nor society as a whole.
Witt, 387 So. 2d at 925 (emphasis added). In Witt, a capital case, the supreme court declined to apply several decisions retroactively.
Inappropriate retroactive application of decisions in criminal cases cause delays, which foster disrespect for our courts and the rule of law. Society has a reasonable expectation that the judiciary will not alter the rules previously defined to allow retrials that impose public costs and in cases involving criminal violence, require victims to relive the agony of the experience and the stress involved in a criminal trial.
If Carawan v. State, 515 So. 2d 161 (Fla. 1987), superseded by statute, ch. 88-131, § 7, Laws of Florida, as recognized in Valdes v. State, 3 So. 3d 1067 (Fla. 2009) was held not to be retroactive, neither should Lee, which did not announce a fundamental rule of constitutional magnitude. Rather, Lee should be regarded as only "evolutionary refinements" of the law of double jeopardy in Florida because it merely applied previously established double-jeopardy law on multiple punishments to specific facts and did not announce a new fundamental constitutional rule:
We must emphasize that the policy interests of decisional finality weigh heavily in our decision. At some point in time cases must come to an end. Granting collateral relief to Glenn and others similarly situated would have a strong impact upon the administration of justice. Courts would be forced to reexamine previously final and fully adjudicated cases. Moreover, courts would be faced in many cases with the problem of making difficult and time-consuming factual determinations based on stale records. We believe that a court's time and energy would be better spent in handling its current caseload than in reviewing cases which were final and proper under the law as it existed at the time of trial and any direct appeal.
In addition, principles of fairness do not require Lee to be held retroactively given the nature of the crimes and Appellant's lack of confusion. The facts of the present case are relevant and informative.
Appellant sought to engage in sexual activity with a (presumed) 13-year old minor. In 2012, Appellant (then 31 yearsof age) was charged with one count of traveling to meet a minor (for sexual activity) in violation of section 847.0135(4)(a), and one count of unlawful use of a computer service (to solicit such activity) in violation of section 847.0135(3)(a), Florida Statutes (2012).
The second probable-cause affidavit established that beginning on August 7, 2012, Appellant began communicating by computer with a person who identified themselves as a 13-year old girl. Appellant communicated repeatedly and in graphic detail with the minor, an undercover police officer, describing the sexual acts he wanted the minor to perform. He repeatedly solicited sex with the minor and eventually proposed meeting the minor to engage in the sexual acts. Upon arrest, Appellant confessed to the conversations, stated he thought the minor was 14-years old, and admitted that the emails were sent by him to the undercover police officer.
The State offered Appellant a plea to 3.5 years in state prison, but Appellant declined the plea offer, pleaded to both charges with no agreement, and sought a downward departure from the recommended sentence under the Criminal Punishment Code. He received a sentence of 5 years in state prison, followed by 15 years of sex-offender probation. Appellant did not appeal his convictions or sentence.
Appellant then sought post-conviction relief in 2016 based on two grounds. Appellant's first...
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