Thomas v. State, 2D14–1986.
| Decision Date | 16 November 2016 |
| Docket Number | No. 2D14–1986.,2D14–1986. |
| Citation | 209 So.3d 35 |
| Parties | Brian THOMAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Joseph C. Bodiford of Bodiford Law, P.A., Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa; and Johnny T. Salgado, Assistant Attorney General, Tampa, substituted as counsel of record, for Appellee.
Following a jury trial, Brian Thomas was convicted and sentenced on one count of traveling to meet a person to solicit a child to commit a sexual act under section 847.0135(4)(b), Florida Statutes (2012) (count I), one count of using a computer to solicit a person to commit a sexual act on a child in violation of section 847.0135(3)(b) (2012) (count II), and one count of attempted lewd or lascivious battery under sections 800.04(a) and 777.04 (2012) (count III). He raises several issues in his appeal, but we find merit in only one, the denial of his motion for arrest of judgment and motion to dismiss count II of the information.
Both counts I and II stemmed from the same course of conduct on the part of Mr. Thomas, who, by his own admission, was searching for a sexual liaison on Craigslist when he happened across a posting from what turned out to be an undercover Florida Department of Law Enforcement Agent posing as the online mother to fictional, minor-aged children. The operative information underlying Mr. Thomas' charges and criminal proceedings alleged, in count II, that Mr. Thomas, "on or about March 19, 2013, through March 22, 2013," used a computer online service to solicit the undercover agent for the purpose of engaging in unlawful sexual activity with minor children. Count I of the operative information alleged that Mr. Thomas then traveled on March 22, 2013, in order to solicit the agent for the purpose of engaging in unlawful sexual conduct with the children. The State does not describe any temporal break between Mr. Thomas' sustained and increasingly lurid text messages and online communications soliciting the FDLE agent from March 19 through March 22 and his driving to meet the agent at an agreed upon location on March 22.
As such, Mr. Thomas is correct that his convictions for traveling to solicit under count I and solicitation under count II, under these facts, encompassed the same criminal conduct and violated the constitutional prohibition against double jeopardy. See State v. Shelley, 176 So.3d 914,...
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Lee v. State
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