Senger v. State
| Decision Date | 27 May 2016 |
| Docket Number | No. 5D13–1961.,5D13–1961. |
| Citation | 200 So.3d 137 |
| Parties | Ramon David SENGER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Harry E. Geissinger, III, Palm Beach, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
, J.
Ramon David Senger (“Senger”) appeals his dual convictions under sections 847.0135(3)(b)
and 847.0135(4)(b), Florida Statutes (2011)—using a computer to solicit a person believed to be a parent for sex with a minor (“solicitation”) and traveling after using a computer to solicit a person believed to be a parent for sex with a minor (“traveling after solicitation”). Following the denial of his dispositive motions to dismiss, Senger tendered an open, nolo contendere plea to both charges, reserving his right to appeal the denial of his motions. After a lengthy sentencing hearing, the trial court adjudicated Senger guilty on both counts and imposed a downward departure sentence of two years of community control on each count, followed by three years of sex offender probation for the solicitation charge, and eight years of sex offender probation for the traveling after solicitation charge, with the sentences running concurrently.1 Senger was also designated as a sex offender pursuant to section 943.0435, Florida Statutes (2011).
Senger raises the following six issues on appeal: (1) the court erred in denying his separate motions to dismiss based on entrapment; (2) the court erred in not withholding an adjudication of guilt; (3) the court erred in designating him as a sex offender; (4) the court erred when it imposed sex offender probation; (5) sections 847.0135(3)(b)
and (4)(b), Florida Statutes (2011), are unconstitutional; and (6) the convictions on both counts violate double jeopardy. Based on the facts of this case and, as the State commendably acknowledges, recent precedent from the Florida Supreme Court, double jeopardy principles prohibit separate convictions for both counts. Accordingly, we reverse Senger's conviction and vacate his sentence on the solicitation count, as it is the lesser offense. Thus, our analysis as to the issues raised by Senger will be limited to his conviction and sentence for traveling after solicitation.
On July 28, 2011, an undercover detective with the Orange County Sheriff's Department posted an advertisement on Craigslist with the title, “Looking for a good man—w4m–34 (Orlando).” The message read: That same day, Senger responded and the following communication between Senger and the detective took place:
Following this exchange, the detective sent Senger two photographs—one photo of a different detective that had been age regressed to make her appear as a fourteen-year-old girl, and a second photo of another detective portrayed as the mother. Senger responded by emailing five photographs of himself and providing his phone number. Through text messages, Senger then made arrangements to meet with what he believed were the mother and daughter on August 2, 2011. Upon arriving at the designated meeting location, the undercover detective recognized Senger and placed him under arrest. Upon searching Senger's vehicle, the detective located a backpack that contained an open box of condoms, a small bottle of lubricant, and a web camera. After being taken to the sheriff's office, Senger waived his Miranda3 rights, admitted that he had sent all of the emails and text messages, and acknowledged that the emails stated that he was interested in the fourteen-year-old daughter.
Senger filed three separate motions to dismiss. The first motion was based on a claim of subjective entrapment, while the second motion argued objective entrapment. Both motions were denied after evidentiary hearings. In his third motion, Senger sought to dismiss the charges, asserting that sections 847.0135(3)(b)
and (4)(b) of the Florida Statutes were unconstitutional for being overly broad, void for vagueness, and in violation of Senger's right to free speech. This motion was also denied after a hearing.
Senger thereafter tendered an open, nolo contendere plea to both charges. Contemporaneous with his plea, Senger executed a document titled “Special Conditions for Sex Offenders per F.S. 948.30
” in which he agreed to specific conditions of sex offender probation. Senger testified at the plea hearing that he had freely and voluntarily executed this document with the understanding that, as a result of his plea, he would be subject to these special conditions. At the later sentencing hearing, Senger successfully argued for the imposition of what amounted to a significant downward departure sentence, acknowledging however that the court would impose the special conditions of sex offender probation and that he would have to register as a sex offender.4
Entrapment
Senger argued in his motions to dismiss below, and argues here, that he was entrapped as a matter of law by the actions of law enforcement under both the subjective and objective standards. In considering a trial court's denial of a motion to dismiss founded on entrapment, our standard of review is de novo. Bist v. State, 35 So.3d 936, 939 (Fla. 5th DCA 2010)
(citing State v. Perkins, 977 So.2d 643, 644 (Fla. 5th DCA 2008) ).
The defense of objective entrapment is evaluated under the due process provision of article I, section 9, of the Florida Constitution
. Munoz v. State, 629 So.2d 90, 98 (Fla.1993). The “ ‘[o]bjective entrapment analysis focuses on the conduct of law enforcement’ and ‘operates as a bar to prosecution in those instances where the government's conduct so offends decency or a sense of justice that it amounts to a denial of due process.’ ” State v. Henderson, 955 So.2d 1193, 1194 (Fla. 4th DCA 2007) (quoting Davis v. State, 937 So.2d 300, 302 (Fla. 4th DCA 2006) ).
State v. Shelley, 176 So.3d 914, 916 (Fla.2015).
The defense of subjective entrapment is codified at section 777.201, Florida Statutes (2011)
, which provides:
Subjective entrapment “focuses on inducement of the accused based on an apparent lack of predisposition to commit the offense.” Henderson, 955 So.2d at 1194
(quoting Davis, 937 So.2d at 302 ). The analysis for subjective entrapment under section 777.201 involves a three-step inquiry.
First, “whether an agent of the government induced the accused to commit the offense charged”; second, “whether the accused was predisposed to commit the offense charged”; and third, “whether the entrapment evaluation should be submitted to a jury.” Munoz, 629 So.2d at 99–100
.
We find that the trial court did not err in...
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Woods v. Sec'y, Fla. Dep't of Corr.
...establish inducement by demonstrating law enforcement merely solicited or created opportunities to commit crimes. Senger v. State, 200 So. 3d 137, 144 (Fla. 5th DCA 2016) (quoting Marreel v. State, 841 So. 2d 600, 603 (Fla. 4th DCA 2003)). Instead, "[i]nducement is defined as including 'per......
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Lamb v. Sec'y, Fla. Dep't of Corr.
...inducement through demonstrating law enforcement merely solicited or created opportunities to commit crimes. Senger v. State, 200 So. 3d 137, 144 (Fla. 5th DCA 2016) (quoting Marreel v. State, 841 So. 2d 600, 603 (Fla. 4th DCA 2003)). Instead, "[i]nducement is defined as including 'persuasi......
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Thomas v. Sec'y, Fla. Dep't of Corr.
...establish inducement by demonstrating law enforcement merely solicited or created opportunities to commit crimes. Senger v. State, 200 So. 3d 137, 144 (Fla. 5th DCA 2016) (quoting Marreel v. State, 841 So. 2d 600, 603 (Fla. 4th DCA 2003)). Instead, "[i]nducement is defined as including 'per......
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