               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



SAMEH SALIB SOLIMAN,               )
                                   )
           Appellant,              )
                                   )
v.                                 )                   Case No. 2D14-5007
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed February 5, 2016.

Appeal from the Circuit Court for Manatee
County; Edward Nicholas, Judge.

Howard L. Dimmig, II, Public Defender, and
Clark E. Green, Assistant Public Defender,
Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Jason M. Miller, Assistant
Attorney General, Tampa, for Appellee.



KHOUZAM, Judge.

             Sameh Salib Soliman appeals his judgments and sentences for traveling

to meet a minor, use of a computer to seduce/solicit/entice a child to commit a sex act,

and attempted lewd or lascivious battery.
              Soliman entered an open plea to these charges after he was apprehended

as a part of an undercover operation. At sentencing, the State recommended six years'

imprisonment followed by four years' probation. The trial court sentenced Soliman to

three years' imprisonment followed by three years' sex offender probation for traveling,

and three years' imprisonment followed by two years' sex offender probation for

soliciting and attempted lewd or lascivious battery. Under State v. Shelley, 176 So. 3d

914, 919 (Fla. 2015), Soliman's conviction and sentence for solicitation cannot stand

because it is subsumed into the traveling offense. The fact that he entered an open

plea does not preclude him from raising this issue on appeal. See Novaton v. State,

634 So. 2d 607, 609 (Fla. 1994) (noting that a defendant that entered a plea may still

raise a double jeopardy claim on appeal when "(a) the plea is a general plea as

distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the

record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy

violation"); Meythaler v. State, 175 So. 3d 918, 919 (Fla. 2d DCA 2015) (same).

              The State argues that Soliman is precluded from raising this issue on

appeal insisting Soliman "received the benefit of [a] plea bargain" because the State

recommended a sentence of only six years' imprisonment followed by four years'

probation. Our review of the record belies the claim that Soliman entered into a plea

bargain. There is no written plea agreement between the State and Soliman in the

record. The plea and sentencing transcripts irrefutably demonstrate that there was no

plea bargain and that Soliman entered an open plea. Simply because the State

recommended what it considered to be a lenient sentence and Soliman was sentenced

favorably does not transmute through judicial alchemy Soliman's open plea into a




                                           -2-
bargain. A plea bargain is "[a] negotiated agreement between a prosecutor and a

criminal defendant whereby the defendant pleads guilty or no contest to a lesser offense

or to one of multiple charges in exchange for some concession by the prosecutor,

[usually] a more lenient sentence or a dismissal of the other charges." Black's Law

Dictionary (10th ed. 2014). There was no negotiated agreement between Soliman and

the State.

             Accordingly, we vacate Soliman's conviction and sentence for solicitation.

We affirm Soliman's remaining convictions and sentences.

             Affirmed in part, vacated in part.


KELLY and CRENSHAW, JJ., Concur.




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