                  FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


ROBERTO TULIER,                              )
                                             )
              Appellant/Cross-Appellee,      )
                                             )
v.                                           )          Case No. 2D13-2098
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee/Cross-Appellant.      )
                                             )

Opinion filed August 20, 2014.

Appeal from the Circuit Court for Pinellas
County; R. Timothy Peters, Judge.

Kepler B. Funk, Keith F. Szachacz, and
Alan S. Diamond of Funk, Szachacz &
Diamond, LLC, Melbourne, for
Appellant/Cross-Appellee.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes, Assistant
Attorney General, Tampa, for
Appellee/Cross-Appellant.


DAVIS, Chief Judge.

              Roberto Tulier challenges his convictions and sentences for aggravated

assault and attempted sexual activity with a minor. He was convicted by a jury, and the

trial court sentenced him to 180 days' county jail to be followed by four years' sex
offender probation. The State cross-appeals, arguing that the trial court improperly

included a jury instruction for an offense that was not charged in the information and

was not a lesser-included offense. The State also argues on cross-appeal that the trial

court erred in sentencing Tulier to a nonstate prison sanction because it would not allow

the State to score the attempted sexual activity with a minor count as the primary

offense. We affirm Tulier's conviction for aggravated assault without further comment.

However, we must reverse his conviction for attempted sexual activity with a minor.

And based on that reversal, we dismiss the State's cross-appeal as moot.

              The charges against Tulier stem from his encounter with a sixteen-year-

old boy. While driving an SUV, Tulier stopped at a stop sign. The victim was on his

bicycle in the crosswalk in front of Tulier. As the victim passed, Tulier called out to him

through his open passenger-side window. The victim approached the passenger side of

the vehicle walking but still astride his bicycle. Tulier asked him through the open SUV

window what his name was and how old he was. The victim said his name and said

that he was seventeen, although he was still sixteen at the time. Tulier then asked the

victim if he wanted to make $400, to which the victim asked how. Tulier said, "Blow

me." The victim immediately called his father on his cell phone, and his father told him

to get the SUV's tag number. While continuing to talk to his father on the phone, the

victim moved to the back of the vehicle, still straddling his bike. At that point, the victim

"heard the car click into reverse, and the vehicle began coming towards me. I jumped

off my bike into the curb, stepped back into the grass. He hit the bike. Dragged it for a

foot or so." The victim inquired, "What the f__?" Tulier responded, "I'm sorry." Tulier




                                             -2-
then drove forward five or six feet, put the vehicle back in reverse, and floored it,

completely running over the bike. He then put the car back into drive and left the scene.

              On appeal, Tulier argues that the trial court erred in failing to grant his

motions for judgment of acquittal and new trial on the attempted sexual activity with a

minor count.1 Tulier maintains that his offering the victim $400 in exchange for oral sex

was not sufficient to amount to an act toward the commission of sexual activity with a

minor but rather merely amounts to solicitation. We agree.

              Section 794.05(1), Florida Statutes (2011), provides as follows:

                     A person [twenty-four] years of age or older who
                     engages in sexual activity with a person [sixteen] or
                     [seventeen] years of age commits a felony of the
                     second degree . . . . As used in this section, 'sexual
                     activity' means oral, anal, or vaginal penetration by, or
                     union with, the sexual organ of another . . . .

Section 777.04(1), Florida Statutes (2011), provides that "[a] person who attempts to

commit an offense prohibited by law and in such attempt does any act toward the

commission of such offense, but fails in the perpetration or is intercepted or prevented

in the execution thereof, commits the offense of criminal attempt." (Emphasis added.)

              In moving for judgment of acquittal, counsel for Tulier argued that Tulier's

actions amounted to nothing more than mere preparation to commit a crime and that to

be an attempt, the actions need to go beyond mere preparation. In denying judgment of

acquittal, the trial court determined that the overt act in furtherance of the commission of

the crime was Tulier's calling the victim over to him, asking for oral sex, and offering


              1
               Tulier also argues on appeal that the trial court erred in denying his
motion for statement of particulars as to this count. However, in response to Tulier's
request, the State did inform him of the factual basis for the allegation that he had
committed attempted sexual activity with a minor. At that time, Tulier did not object or
seek further clarification.


                                            -3-
money in exchange for oral sex. The trial court therefore denied the motion and later

denied a motion for new trial raising the same argument. This was error.

             In Pittman v. State, 47 So. 2d 691 (Fla. 1950), a case analogous to the

instant case, the Florida Supreme Court considered the offense of attempted sexual

intercourse with an unmarried female of previous chaste character under the age of

eighteen years (statutory rape). In doing so, the court recognized that

                    "[i]n an assault with intent to have unlawful carnal
                    intercourse with an unmarried female of previous
                    chaste character under the age of eighteen years the
                    intent to then and there have sexual intercourse with
                    the female is the gravamen, and . . . . there must be
                    some overt act directed to the consummation of the
                    unlawful intent."

Id. at 692 (underlined emphasis added) (quoting State v. Bowden, 18 So. 2d 478, 480

(Fla. 1944)). The court went on to state that

                    [w]here an attempt is charged the overt act need not
                    be of such force and violence as to constitute a legal
                    assault. In fact, considering that consent is no
                    defense against a charge of statutory rape, we can
                    envisage many acts which would amount to attempts
                    to perpetrate the crime under consideration. Be that
                    as it may, to constitute an attempt there must be
                    some overt act amounting to more than mere
                    preparation.

Id. Specifically addressing the issue of an overt act versus mere preparation, the court

considered the particular facts of the Pittman case. There, the information charged that

                    Pittman[ ] did say in the presence of and directly to
                    the [victim] words in substance and in effect . . . to wit:
                    I want to take you [to] a dance; I want to take you to
                    the movies and invited her to go [to] a dance, or the
                    movies or on [sic] a party with him . . . and called her
                    endearing names, and upon such invitations being
                    refused by the [victim] he . . . then asked and invited
                    the [victim] to go out of the building in which they were



                                           -4-
                     both then working into adjoining woods for the
                     purpose of having sexual intercourse with each other
                     in said woods, or with the intent . . . to have unlawful
                     carnal intercourse . . . .

Id. at 691. Essentially, Pittman asked the victim to go in the woods and have sex with

him. And the Florida Supreme Court concluded that "[t]he facts alleged and established

in this case constitute, at most, only solicitation—a mere preparation." Id. at 692.

Therefore, the court concluded that "[a]lthough the conduct of the appellant as shown by

the record was indeed reprehensible, there was no allegation in the information, nor

was any proof adduced, of an overt act sufficient to establish a criminal attempt." Id.

              The same is true in the instant case. Tulier essentially asked the victim for

oral sex in exchange for $400. And while the trial court made much of the fact that he

called the victim over in order to ask the question, such only amounts to preparation.

The evidence does not support a conviction for attempted sexual activity with a minor.

We therefore must reverse Tulier's conviction on that count.

              Affirmed in part; reversed in part; cross-appeal dismissed as moot.




KELLY and LaROSE, JJ., Concur.




                                           -5-
