State v. Sholl, No. 1D08-4826.

CourtCourt of Appeal of Florida (US)
Writing for the CourtHawkes
Citation18 So.3d 1158
Decision Date25 September 2009
Docket NumberNo. 1D08-4826.
PartiesSTATE of Florida, Appellant, v. John C. SHOLL, Appellee.
18 So.3d 1158
STATE of Florida, Appellant,
v.
John C. SHOLL, Appellee.
No. 1D08-4826.
District Court of Appeal of Florida, First District.
September 25, 2009.

[18 So.3d 1160]

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellant.

Nancy Jones Gaglio, of Jones Gaglio, P.A., Panama City, for Appellee.

HAWKES, C.J.


John Sholl was charged in a two-count information with lewd or lascivious exhibition (Count I) and transmitting an image harmful to minors by electronic device (Count II). Both charges arose from the same underlying act. Sholl moved to dismiss the charges pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) (2008), claiming the exhibition charge lacked factual support and the transmission charge violated the constitutional prohibition against double jeopardy and infringed upon his right to free speech. The State filed a traverse and the matter proceeded to a hearing during which the parties reiterated the arguments raised in their pleadings. At the conclusion of the hearing, the trial court granted Sholl's motion but did not explain its reasoning. It then issued an order dismissing the charges without further explanation. The dismissal was erroneous as each argument raised in Sholl's motion was legally baseless. We therefore reverse the trial court's determination and remand for reinstatement of both charges.

Standard of Review

According to Florida Rule of Criminal Procedure 3.190(c)(4), an information can be dismissed when "[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant." To avoid dismissal under Rule 3.190(c)(4), the State must present sufficient facts that, when viewed in a light most favorable to the State, show a reasonable jury could find in its favor. See State v. Terma, 997 So.2d 1174, 1177-78 (Fla. 3d DCA 2008) (stating the State is entitled to the most favorable construction of the facts possible); State v. Ortiz, 766 So.2d 1137, 1141-42 (Fla. 3d DCA 2000) (stating that when considering a Rule 3.190(c)(4) motion, "the [S]tate is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant"). Whether the trial court properly granted a motion to dismiss pursuant to Rule 3.190(c)(4) is reviewed de novo. See Galston v. State, 943 So.2d 968, 970-71 (Fla. 5th DCA 2006); State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002). Each of the charges against Sholl will be examined using this standard.

18 So.3d 1161
Lewd or Lascivious Exhibition (Count I)

Count I of the information charged Sholl with lewd and lascivious exhibition pursuant to section 800.04(7)(a), Florida Statutes (2008). Sholl moved to dismiss the charge as he argued the undisputed facts did not establish that he engaged in "lewd or lascivious" conduct. The trial court improperly granted the motion because whether Sholl's conduct was "lewd or lascivious" should have been submitted to the jury.

According to section 800.04(7)(a), a defendant can commit "lewd and lascivious exhibition" in a variety of ways, including intentionally exposing "the genitals in a lewd or lascivious manner." The terms "lewd" and "lascivious" are not defined in the statutory scheme. See Chesebrough v. State, 255 So.2d 675, 677 (Fla.1971); Method v. State, 920 So.2d 141, 143 (Fla. 4th DCA 2006); State v. Mitchell, 624 So.2d 859, 860 (Fla. 5th DCA 1993). Because the legislature has not defined "lewd" or "lascivious" behavior, "it is up to a jury to decide, based upon the totality of the circumstances, whether or not [the defendant's] behavior violated the statute." Mitchell, 624 So.2d at 860; see also Rosen v. State, 940 So.2d 1155, 1160 (Fla. 5th DCA 2006) (stating the question of whether conduct is "lewd or lascivious" is one of fact and must be decided by the jury "based upon the totality of the circumstances"); W.R.H. v. State, 763 So.2d 1111, 1112 (Fla. 4th DCA 1999) (stating whether an act is "lewd or lascivious" is "a question of fact and based on the circumstances of each individual case"). A narrow exception allowing the trial court to make the determination exists only "when it can `reasonably' be said that the acts are not lewd and lascivious as a matter of law." Mitchell, 624 So.2d at 860. However, the exception applies only when no inference of "lewd or lascivious" conduct can be drawn from the facts alleged. See M.L.C. v. State, 875 So.2d 810, 812 (Fla. 2d DCA 2004).

Here, the undisputed facts — as set forth in the motion to dismiss, the traverse, and the hearing — indicated Sholl engaged in a real-time chat over Yahoo's Instant Messenger feature using a web camera. The chat was between Sholl and a police investigator whom he believed to be a thirteen-year old girl. During the transmission, Sholl exposed his genitals.

Viewing these undisputed facts in a light most favorable to the State, it cannot be said that the State failed to establish a prima facie case of lewd or lascivious exhibition. A jury could reasonably infer from Sholl's decision to expose himself that he was intentionally acting in a lewd or lascivious manner. See Egal v. State, 469 So.2d 196, 199 (Fla. 2d DCA 1985) (stating "current standards have not changed to the point that total nudity is considered to be normally acceptable behavior. To intentionally expose one's private parts to a young child is hardly accepted conduct."). Consequently, the trial court erred in dismissing the charge on the basis that Sholl's actions were not lewd and lascivious as a matter of law. Given the circumstances of the case, this was a question of fact for the jury to decide, not the trial court.

Transmitting Material Harmful to a Minor Via Electronic Device (Count II)

In Count II, Sholl was charged with transmitting material harmful to a minor via electronic device, contrary to section 847.0138 (2008), Florida Statutes (2008). Sholl asserted two arguments concerning the transmission charge: (1) charging him with transmitting material harmful to a minor violated the prohibition against double jeopardy as it contained the same elements

18 So.3d 1162

as the charge of lewd and lascivious exhibition; and (2) the transmission in question was speech protected by the First Amendment. Both arguments are unpersuasive.

First, the trial court should not have considered Sholl's double jeopardy claim until sentencing. When an information contains two or more charges which amount to the same offense, "[d]ouble jeopardy concerns require only that the trial judge filter out multiple punishments at the end of the trial, not at the beginning." Claps v. State, 971 So.2d...

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1 practice notes
  • Newcombe v. State, No. 1D16-4769
    • United States
    • Court of Appeal of Florida (US)
    • December 6, 2019
    ...sought "at the end of the trial, not at the beginning." See Lee, 223 So. 3d at 361-63 (Winokur, J., concurring) (citing State v. Sholl, 18 So. 3d 1158, 1162 (Fla. 1stPage 9 DCA 2009) applying rule of Johnson, 467 U.S. at 494-96) (emphasis added). As Judge Winokur stated in his concurring op......
1 cases
  • Newcombe v. State, No. 1D16-4769
    • United States
    • Court of Appeal of Florida (US)
    • December 6, 2019
    ...sought "at the end of the trial, not at the beginning." See Lee, 223 So. 3d at 361-63 (Winokur, J., concurring) (citing State v. Sholl, 18 So. 3d 1158, 1162 (Fla. 1stPage 9 DCA 2009) applying rule of Johnson, 467 U.S. at 494-96) (emphasis added). As Judge Winokur stated in his concurring op......

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