                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

DAVID LEON LASHLEY,                  NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-277

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 28, 2016.

An appeal from the Circuit Court for Alachua County.
Robert Groeb, Judge.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      David Leon Lashley, Appellant, was convicted by a jury of improper use of

a computer service to solicit a minor contrary to section 847.0135(3)(a), Florida

Statutes (2011); unlawful use of a two-way communications device to further the
commission of a felony contrary to section 934.215; traveling to meet a person

believed to be a minor after using a computer device capable of electronic data

storage to solicit unlawful sexual conduct contrary to section 847.0135(4)(a); and

failure to appear, contrary to section 843.15(1)(a). Appellant challenges his

convictions for solicitation, unlawful use of a two-way communications device,

and traveling after solicitation. For the reasons that follow, we affirm Appellant’s

conviction for traveling after solicitation, reverse his convictions for improper use

of a computer to solicit and unlawful use of a two-way communications device,

and remand for resentencing based upon a corrected criminal punishment code

scoresheet.

      In State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015), the Florida Supreme

Court held that double jeopardy principles prohibit separate convictions for

solicitation under section 847.0135(3)(b), Florida Statutes (2011), and traveling to

meet a minor after solicitation pursuant to section 847.0135(4)(b) if the charges

were based on the same conduct. The State properly concedes that the reasoning in

Shelley applies to this case, even though this case involves violations of sections

847.0135(3)(a) and (4)(a). Accordingly, we reverse and remand to the trial court

with directions to vacate Appellant’s conviction and sentence for the lesser

included offense of using a computer service to solicit a child to engage in sexual

conduct in violation of section 847.0135(3)(a).

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      Appellant also contends that if either his conviction for solicitation or

traveling after solicitation withstands our review, then his conviction for unlawful

use of a two-way communications device should be vacated to prevent a violation

of double jeopardy. We affirm Appellant’s conviction for traveling to meet a

person believed to be a child after using a computer device capable of electronic

data storage to solicit unlawful sexual conduct, but agree with Appellant that his

conviction for unlawful use of a two-way communications device must be vacated

pursuant to our decision in Hamilton v. State, 163 So. 3d 1277, 1279 (Fla. 1st DCA

2015) (holding that convictions arising out of the same criminal episode for

traveling to meet a minor under section 847.0135(4), Florida Statutes (2013), and

unlawful use of a two-way communications device under section 934.215, Florida

Statutes (2013), violate double jeopardy). See also Holt v. State, 173 So. 3d 1079

(Fla. 5th DCA 2015).

      AFFIRMED in part, REVERSED in part, and REMANDED.

RAY, BILBREY, and JAY, JJ., CONCUR.




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