          Supreme Court of Florida
                                   ____________

                                  No. SC17-1555
                                  ____________

                            BRIAN MITCHELL LEE,
                                  Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                December 13, 2018

PARIENTE, J.

      In State v. Shelley, 176 So. 3d 914 (Fla. 2015), this Court held that “dual

convictions for solicitation and traveling after solicitation based upon the same

conduct” violate double jeopardy. Id. at 919. Today, this Court is asked how a

reviewing court should determine whether multiple convictions are based upon the

same conduct. More specifically, the conflict issue in this case is whether, in

determining if multiple convictions of solicitation of a minor, unlawful use of a

two-way communications device, and traveling after solicitation of a minor are

based upon the same conduct for purposes of double jeopardy, the reviewing court

should consider only the charging document or the entire evidentiary record.
      In Lee v. State, 223 So. 3d 342, 346 (Fla. 1st DCA 2017), the First District

Court of Appeal, in an en banc opinion from which two judges dissented, held that

it was appropriate for an appellate court to review the entire evidentiary record to

determine whether multiple convictions violate double jeopardy. This holding is in

conflict with decisions from the Second and Fifth District Courts of Appeal. See

Thomas v. State, 209 So. 3d 35 (Fla. 2d DCA 2016); Honaker v. State, 199 So. 3d

1068 (Fla. 5th DCA 2016); Stapler v. State, 190 So. 3d 162 (Fla. 5th DCA 2016);

Holt v. State, 173 So. 3d 1079 (Fla. 5th DCA 2015); and Mizner v. State, 154 So.

3d 391 (Fla. 2d DCA 2014). 1

      We hold that, consistent with Shelley, to determine whether multiple

convictions of solicitation of a minor, unlawful use of a two-way communications

device, and traveling after solicitation of a minor are based upon the same conduct

for purposes of double jeopardy, the reviewing court should consider only the

charging document. Accordingly, we quash the decision of the First District and

approve the conflict cases from the Second and Fifth Districts to the extent they are

consistent with this opinion. 2




      1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

       2. We exercise our discretion and decline to address the additional issues
raised by Lee that are beyond the scope of our conflict jurisdiction. See
Weatherspoon v. State, 214 So. 3d 578, 580 n.2 (Fla. 2017).


                                         -2-
                           FACTUAL BACKGROUND

      The First District set forth the facts giving rise to Lee’s convictions as

follows:

             Lee placed an ad in the Casual Encounters section of Craigslist,
      seeking an encounter with a male “under 25” years old. An
      investigator presenting himself as “Matt” responded to Lee’s ad after
      he determined the ad could be an effort to initiate contact with a
      minor. The investigator promptly informed Lee that “Matt” was only
      fourteen years old. But even after learning that “Matt” was a minor,
      Lee continued the communications. Over the course of the next
      eleven days, the two exchanged multiple emails and Lee proposed that
      the two engage in various sexual acts. On the twelfth day, Lee asked
      to meet “Matt” in person. When Lee arrived at the agreed-upon
      location, he was met by law enforcement and arrested. A search of
      his truck revealed erectile dysfunction medications.

Lee, 223 So. 3d at 346. Lee was charged by information with (1) one count of

traveling to meet a minor to engage in sexual conduct,3 (2) one count of unlawful

use of a two-way communications device to facilitate the commission of a felony, 4

and (3) one count of using a computer to facilitate or solicit the sexual conduct of a

child. 5 Lee, 223 So. 3d at 346. The information alleged that the traveling offense

occurred on or about January 2, 2014, and that counts two and three occurred “on




      3. § 847.0135(4)(a), Fla. Stat. (2013).
      4. § 934.215, Fla. Stat. (2013).

      5. § 847.0135(3)(a), Fla. Stat. (2013).


                                         -3-
one or more occasions between December 22, 2013, and January 1, 2014.” Id. at

354.

       Lee moved to dismiss the charges, arguing that counts two and three violated

double jeopardy because the elements of solicitation of a minor and unlawful use

of a two-way communications device were subsumed within the elements of

traveling after solicitation. Id. at 346. “The trial court denied the motion, and the

case proceeded to trial.” Id.

       On a basic verdict form, the jury found Lee guilty of all three counts “as

charged in the Information.” The trial court sentenced Lee to a downward

departure sentence of two years’ community control, followed by thirteen years’

probation. Id. at 347. Lee appealed to the First District, arguing that his

convictions violated double jeopardy. Id. at 346.

       A majority of the First District disagreed with Lee and held that there was no

double jeopardy violation because Lee’s “convictions were not based on the same

conduct,” but “arose from separate criminal episodes and distinct criminal acts.”

Id. In determining that Lee’s convictions were not based on the same conduct, the

First District examined “the entire record, including all evidence admitted at trial.”

Id. at 349. Accordingly, the First District affirmed Lee’s convictions. Id. at 346. 6


      6. The State also appealed the trial court’s downward departure sentence,
arguing that “there was no evidence to support the court’s statutory ground for
departure . . . and because the non-statutory grounds . . . were not valid reasons for

                                         -4-
Judges Bilbrey and Makar wrote separate concurring in part and dissenting in part

opinions, arguing that it was impossible to determine whether there was a double

jeopardy violation because the information charging Lee did not allege distinct acts

and the verdict form did not separate the acts.7

      This review followed.

                                    ANALYSIS

      The issue in this case is whether, in determining if multiple convictions of

solicitation of a minor, unlawful use of a two-way communications device, and

traveling after solicitation of a minor are based upon the same conduct for purposes

of double jeopardy, the reviewing court should consider only the charging

document or the entire evidentiary record. “Double jeopardy claims based on

undisputed facts present questions of law and are subject to de novo review.”

Graham v. State, 207 So. 3d 135, 137 (Fla. 2016).

                    I. Double Jeopardy Principles and Shelley

      Double jeopardy “prohibits subjecting a person to multiple prosecutions,

convictions, and punishments for the same criminal offense.” Valdes v. State, 3



departure.” Lee, 223 So. 3d at 358. The First District agreed, and reversed and
remanded for resentencing. Id. at 360. We do not address this issue as Lee does
not challenge this ruling in this Court.
        7. Judges Bilbrey and Makar concurred in the majority’s conclusion that the
trial court erred in imposing a downward departure sentence.


                                        -5-
So. 3d 1067, 1069 (Fla. 2009). Both the United States and Florida Constitutions

contain double jeopardy clauses. See U.S. Const. amend. V; art. I, § 9, Fla. Const.

“The prohibition against double jeopardy is ‘fundamental.’ ” Lippman v. State,

633 So. 2d 1061, 1064 (Fla. 1994) (quoting Benton v. Maryland, 395 U.S. 784, 795

(1969)).

      “Despite this constitutional protection, there is no constitutional prohibition

against multiple punishments for different offenses arising out of the same criminal

transaction as long as the Legislature intends to authorize separate punishments.”

Valdes, 3 So. 3d at 1069. Where “there is no clear statement of legislative intent to

authorize or to prohibit separate punishments,” courts employ the Blockburger 8

same-elements test, codified in section 775.021(4), Florida Statutes (2018), to

determine if there is a double jeopardy violation. Valdes, 3 So. 3d at 1070. “This

test ‘inquires whether each offense contains an element not contained in the other;

if not, they are the same offense,’ and double jeopardy principles prohibit separate

convictions and punishments based upon the same conduct.” Shelley, 176 So. 3d

at 918 (quoting M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996)).




      8. Blockburger v. United States, 284 U.S. 299 (1932).


                                        -6-
      There are three offenses at issue in this case—(1) solicitation of a minor, (2)

unlawful use of a two-way communications device, (3) and traveling after

solicitation. The solicitation statute provides in pertinent part:

             (3) Certain uses of computer services or devices prohibited.—
      Any person who knowingly uses a computer online service, Internet
      service, local bulletin board service, or any other device capable of
      electronic data storage or transmission to:
             (a) Seduce, solicit, lure, or entice, or attempt to seduce, solicit,
      lure, or entice, a child or another person believed by the person to be a
      child, to commit any illegal act described in chapter 794, chapter 800,
      or chapter 827, or to otherwise engage in any unlawful sexual conduct
      with a child or with another person believed by the person to be a
      child; . . .

      commits a felony . . . .

§ 847.0135(3)(a), Fla. Stat. (2013). The unlawful use of a two-way

communications device statute states in full:

            Any person who uses a two-way communications device,
      including, but not limited to, a portable two-way wireless
      communications device, to facilitate or further the commission of any
      felony offense commits a felony of the third degree . . . .

§ 934.215, Fla. Stat. (2013). Finally, the traveling after solicitation statute

provides in pertinent part:

            (4) Traveling to meet a minor.—Any person who travels any
      distance either within this state, to this state, or from this state by any
      means, who attempts to do so, or who causes another to do so or to
      attempt to do so for the purpose of engaging in any illegal act
      described in chapter 794, chapter 800, or chapter 827, or to otherwise
      engage in other unlawful sexual conduct with a child or with another
      person believed by the person to be a child after using a computer



                                          -7-
      online service, Internet service, local bulletin board service, or any
      other device capable of electronic data storage or transmission to:
             (a) Seduce, solicit, lure, or entice or attempt to seduce, solicit,
      lure, or entice a child or another person believed by the person to be a
      child, to engage in any illegal act described in chapter 794, chapter
      800, or chapter 827, or to otherwise engage in other unlawful sexual
      conduct with a child; . . .

      commits a felony . . . .

§ 847.0135(4)(a), Fla. Stat. (2013).

      In Shelley, this Court concluded that “dual convictions for solicitation and

traveling after solicitation based upon the same conduct” violate double jeopardy.

176 So. 3d at 919.9 Similar to this case, the events in Shelley began on Craigslist

and ended with the State charging Shelley with “a single violation” of soliciting a

minor and “a single violation of” traveling after solicitation. Id. at 916-17.

Significantly, this Court noted that “[t]he State relied upon the same conduct to

charge both offenses.” Id. at 917. Shelley pled guilty to both counts. Id.

      In the Second District, Shelley argued that his convictions violated double

jeopardy because the elements of solicitation were subsumed by the elements of



       9. Shelley involved violations of section 847.0135(3)(b) and (4)(b), Florida
Statutes (2011), which criminalize solicitation of “a parent, legal guardian, or
custodian of a child or a person believed to be a parent, legal guardian, or
custodian of a child to consent to the participation of such child” in specified acts
or sexual conduct, whereas this case involves violations of section 847.0135(3)(a)
and (4)(a), which criminalize solicitation of “a child or another person believed by
the person to be a child.” Thus, the only difference between the subsections is who
the defendant believes he or she is soliciting.


                                         -8-
traveling after solicitation. Shelley v. State, 134 So. 3d 1138, 1140 (Fla. 2d DCA

2014), approved, 176 So. 3d 914 (Fla. 2015). The Second District agreed. Id. at

1140-41. The Second District then turned to address the State’s argument that

“because Shelley’s three separate uses of computer devices on the date charged in

the information would have supported three separate soliciting charges, the

soliciting charge is not subsumed by the traveling charge.” Id. at 1141. The

Second District rejected this argument, explaining:

      The State only charged one use of computer devices to solicit, and
      that charge was based on a solicitation occurring on the same date as
      the traveling offense. We find no legal basis to deny a double
      jeopardy challenge based on uncharged conduct simply because it
      could have been charged. But we acknowledge that convictions for
      both soliciting and traveling may be legally imposed in cases in which
      the State has charged and proven separate uses of computer devices to
      solicit.

Id. at 1141-42 (emphasis added).

      The State petitioned this Court’s review and argued, as it did in the Second

District, that Shelley’s dual convictions for solicitation and traveling after

solicitation did not violate double jeopardy because the evidence showed that

Shelley “used a computer to solicit . . . four times on the date in question.”

Petitioner’s Initial Br. on the Merits at 13, State v. Shelley, 176 So. 3d 914 (Fla.

2015) (No. 14-755). This Court disagreed, holding that solicitation and traveling

after solicitation are “the same for purposes of the . . . same-elements test” and,

thus, Shelley’s “dual convictions for solicitation and traveling after solicitation

                                         -9-
based upon the same conduct impermissibly place[d] him in double jeopardy.”

Shelley, 176 So. 3d at 919 (emphasis added).

                                  II. The Conflict

      Before and after this Court’s opinion in Shelley, the district courts have

disagreed on how a reviewing court should determine whether multiple convictions

are based on the same conduct. In one of the conflict cases, Mizner, under

circumstances similar to those here, Mizner was charged with and convicted of the

same three offenses as Lee—solicitation, traveling after solicitation, and unlawful

use of a two-way communications device—as well as attempted sexual battery.

154 So. 3d at 395. On appeal, the State conceded that the solicitation offense was

subsumed within the traveling after solicitation offense. Id. at 399. However, the

State argued that “because the evidence at trial would support a finding that each

of the offenses occurred on different days during separate episodes,” there was no

double jeopardy violation. Id. The Second District rejected that argument,

reasoning:

             Although the offenses charged in this case spanned more than
      one day, the State charged single counts of soliciting, traveling, and
      unlawful use of a two-way communications device. And, the State
      charged each of the offenses over the same time period, from
      November 1, 2011, to November 4, 2011. Thus we reject the State’s
      argument, as we did in Shelley, that the evidence could support
      convictions for each offense as occurring during a separate criminal
      episode. The State did not charge the offenses as occurring during
      separate criminal episodes; rather, it charged them as occurring during
      a single criminal episode.

                                       - 10 -
Id. at 400 (emphasis added). Accordingly, the Second District vacated Mizner’s

convictions and sentences for solicitation and unlawful use of a two-way

communications device because they were subsumed within the offense of

traveling after solicitation. Id.

      The Fifth District reached the same conclusion in Holt, explaining:

             Here, the State charged a single count of unlawful use of a two-
      way communications device and a single count of traveling to meet a
      minor. The information alleged that each offense occurred “on or
      about March 14, 2013.” Neither the charging information nor the jury
      verdict form included language clearly predicating the disputed
      charges on two distinct acts. As a result, the State charged the
      offenses as occurring during a single criminal episode, and we may
      not assume that they were predicated on distinct acts.

173 So. 3d at 1081 (emphasis added) (citing Mizner, 154 So. 3d at 400). The First

District expressly rejected this approach in the decision under review, stating that

to determine whether multiple convictions are based on distinct acts, the reviewing

court must examine “the entire evidentiary record,” not just the “charging

document and the jury verdict.” Lee, 223 So. 3d at 353.

      The conflict in this case is readily resolved by our opinion in Shelley, where

we rejected the argument that a reviewing court could save an otherwise

nonspecific charging document by conducting its own examination of the

evidentiary record to sustain the convictions. A reviewing court’s ability to find

evidence in the record to support multiple convictions is insufficient to defeat a


                                        - 11 -
double jeopardy claim when nothing in the charging document suggests that the

convictions were based on separate conduct. As Judge Makar explained, the issue

“is not one of evidentiary sufficiency” but of “constitutional sufficiency.” Id. at

374 (Makar, J., concurring in part, dissenting in part). Accordingly, we hold that,

to determine whether multiple convictions of solicitation of a minor, unlawful use

of a two-way communications device, and traveling after solicitation of a minor are

based upon the same conduct for purposes of double jeopardy, the reviewing court

should consider only the charging document—not the entire evidentiary record.

                                    III. This Case

       In this case, the State charged Lee with a single count of traveling after

solicitation, a single count of unlawful use of a two-way communications device to

commit a felony, and a single count of solicitation. The information alleged that

the traveling offense occurred “on or about January 2, 2014.” The information

alleged that the unlawful use of a two-way communications device and the

solicitation offense occurred “on one or more occasions between December 22,

2013, and January 1, 2014.” The jury found Lee guilty of all three counts “as

charged in the Information.”

      We agree with Judges Bilbrey and Makar that the information does not make

clear that the State relied on separate conduct to charge the offenses. See id. at 371

(Bilbrey, J., concurring in part and dissenting in part); id. at 373 (Makar, J.,


                                         - 12 -
concurring in part, dissenting in part). Indeed, as Judge Bilbrey stated, “The

information in this case did not allege distinct acts; the verdict form did not

separate the acts; and the evidence presented to the jury could support, but did not

require, the jury to find that the acts underlying Lee’s conviction were separate.”

Id. at 371 (Bilbrey, J., concurring in part and dissenting in part).

      Considering only the information, it is impossible to know whether the jury

convicted Lee of all three offenses based on the same act of solicitation. “For all

we know, jury deliberations ended when they found a [single] solicitation

violation . . . .” Id. at 373 (Makar, J., concurring in part, dissenting in part).

      As stated previously, “dual convictions for solicitation and traveling after

solicitation” that are “based upon the same conduct” violate double jeopardy.

Shelley, 176 So. 3d at 919. Likewise, multiple convictions of solicitation, unlawful

use of a two-way communications device, and traveling after solicitation based

upon the same conduct violate double jeopardy. See Mizner, 154 So. 3d at 399

(concluding that “the unlawful use of a two-way communications device” in

section 934.215 “was subsumed within” the offenses of solicitation and traveling

after solicitation); Honaker, 199 So. 3d at 1070 (holding that convictions for

unlawful use of a two-way communications device, solicitation, and traveling after

solicitation based on the same conduct violated double jeopardy). Thus, Lee’s

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


                                          - 13 -
must be vacated. See Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006) (“When an

appellate court determines that dual convictions are impermissible, the appellate

court should reverse the lesser offense conviction and affirm the greater.”).

                                  CONCLUSION

      For the reasons stated, we hold, consistent with Shelley, that to determine

whether multiple convictions of solicitation of a minor, unlawful use of a two-way

communications device, and traveling after solicitation of a minor are based upon

the same conduct for purposes of double jeopardy, the reviewing court may

consider only the charging document. Accordingly, we quash the First District’s

decision in Lee, and approve Thomas, Honaker, Stapler, Holt, and Mizner to the

extent they are consistent with this opinion. We direct that Lee’s convictions of

solicitation of a minor and unlawful use of a two-way communications device be

vacated, and remand the case to the First District for proceedings consistent with

this opinion.

      It is so ordered.

CANADY, C.J., and LEWIS, POLSTON, LABARGA, and LAWSON, JJ., concur.
QUINCE, J., concurs in result only.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A
REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.


                                        - 14 -
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      First District - Case Nos. 1D15-943 and 1D15-945

      (Escambia County)

Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Heather Flanagan Ross, Assistant Attorney General, Tallahassee, Florida,

      for Respondent




                                      - 15 -
