        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             KIRK READY,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-2870

                           [January 20, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Sandra    McSorley,      Judge;   L.T.   Case     No.
502012CF008622AXXXMB.

  Carey Haughwout, Public Defender, and Ellen Griffin, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, C.J.

   The appellant challenges his convictions and sentences for four
crimes arising out of his solicitation of a minor over the internet. He
argues, among other things, that one of his convictions is barred by
double jeopardy principles. We agree, and as to count one, reverse the
conviction and sentence.

   The state charged the appellant in a four-count information. For
count one, the appellant was charged with a violation of section
847.0135(3), Florida Statutes (2012), which provides:

      (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 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 of the third degree . . . .

§ 847.0135(3)(a), Fla. Stat. (2012).

   For count two, the state charged the appellant with a violation of
section 847.0135(4), which provides:

      (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
      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 of the second degree . . . .

   The state’s evidence at jury trial established that a detective posing as
a male minor responded to an advertisement which the appellant placed
on Craigslist,1 seeking a young male to engage in sexual acts. Beginning

1 Craigslist is a website providing classified advertisements for, among other
things, jobs, items for sale, and personals.

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early in the afternoon, the two exchanged a series of e-mails. After
exchanging cell phone numbers, they began texting one another. At 6:08
p.m., the detective, posing as the minor, texted, “Brb gonna eat quick.”
The two exchanged more texts, the last one occurring at 6:14 p.m. Then
there was a break until 6:35 p.m., when the detective indicated he was
“[b]ack.” The appellant responded at 6:44 p.m., explaining that he had
stepped out. The texting continued into the evening hours, culminating
in an agreement to meet at a specified restaurant. After law enforcement
officers apprehended the appellant near the restaurant, he gave
incriminating statements during a police interrogation.

    The jury found the appellant guilty as charged. He argues his
convictions on counts one and two violate double jeopardy because the
elements of count one are subsumed within count two and the two
offenses were actually one continuing act that occurred on the same day.

   “Because double jeopardy issues involve purely legal determinations,
the standard of review is de novo.” Benjamin v. State, 77 So. 3d 781, 783
(Fla. 4th DCA 2011).

      [B]oth the United States and Florida Constitutions contain
      double jeopardy clauses that “prohibit[ ] subjecting a person
      to multiple prosecutions, convictions, and punishments for
      the same criminal offense.” However, . . . “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.”

State v. Shelley, 176 So. 3d 914, 917 (Fla. 2015) (internal citation and
footnote omitted) (quoting Valdes v. State, 3 So. 3d 1067, 1069 (Fla.
2009)). The Florida Supreme Court has explained that if the legislature
has not expressed an intent to authorize separate punishments for two
crimes arising out of one criminal episode, then a court must apply the
test recited in Blockburger v. United States, 284 U.S. 299 (1932), which
has been codified in section 775.021(4), Florida Statutes. Shelley, 176
So. 3d at 917. “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.” Id. at 918 (quoting M.P. v.
State, 682 So. 2d 79, 81 (Fla. 1996)).

   The state claims that the legislature authorized separate punishments
for violations of subsections 847.0135(3) and (4), but the Florida

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Supreme Court recently rejected that argument. See id. at 918-19.
Although Shelley involved violations of sections 847.0135(3)(b) and (4)(b),
and this case involves violations of sections (3)(a) and (4)(a), this does not
impact the court’s finding in Shelley that the statute does not contain an
explicit statement of intent for separate punishments.2

2   Section 847.0135(3)(b), Florida Statutes (2012), provides as follows:

         (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:

         ....

         (b) Solicit, lure, or entice, or attempt to solicit, lure, or entice 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 any act described in chapter
         794, chapter 800, or chapter 827, or to otherwise engage in any
         sexual conduct,

         commits a felony of the third degree . . . .

Section 847.0135(4)(b), Florida Statutes (2012), provides as follows:

         (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 online service, Internet service, local bulletin
         board service, or any other device capable of electronic data
         storage or transmission to:

         ....

         (b) Solicit, lure, or entice or attempt to solicit, lure, or entice 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 any act described in chapter
         794, chapter 800, or chapter 827, or to otherwise engage in any
         sexual conduct,

         commits a felony of the second degree . . . .

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    The next question then is whether, under section 775.021(4), double
jeopardy applies to bar the dual convictions. The statute provides the
following:

      (4)(a) Whoever, in the course of one criminal transaction or
      episode, commits an act or acts which constitute one or
      more separate criminal offenses, upon conviction and
      adjudication of guilt, shall be sentenced separately for each
      criminal offense . . . . For the purposes of this subsection,
      offenses are separate if each offense requires proof of an
      element that the other does not, without regard to the
      accusatory pleading or the proof adduced at trial.

      (b) The intent of the Legislature is to convict and sentence for
      each criminal offense committed in the course of one
      criminal episode or transaction and not to allow the principle
      of lenity as set forth in subsection (1) to determine legislative
      intent. Exceptions to this rule of construction are:

      1. Offenses which require identical elements of proof.

      2. Offenses which are degrees of the same offense as
         provided by statute.

      3. Offenses which are lesser offenses the statutory elements
         of which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2012).

   In Hartley v. State, 129 So. 3d 486 (Fla. 4th DCA 2014), the convicted
defendant also argued that his convictions for violations of sections
847.0135(3)(a) and (4)(a) violated double jeopardy. This court broke
down the elements of each offense and found that soliciting a minor in
violation of section 847.0135(3)(a) is subsumed by the offense of traveling
to meet a minor in violation of section 847.0135(4)(a):

      Traveling to meet a minor includes the following four
      elements: (1) knowingly traveling within this state, (2) for the
      purpose of engaging in any illegal act (in violation of chapters
      794, 800, or 827, or other unlawful sexual conduct) with the
      victim after using a computer or other electronic data storage
      transmission to contact a child, (3) the victim was a child or
      person believed by the defendant to be a child, and (4) the

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      defendant seduced, solicited, lured, enticed or attempted to
      do so to engage in the illegal act or unlawful sexual conduct.
      The elements of soliciting a child for unlawful sexual conduct
      using computer services or devices are:          (1) defendant
      knowingly used a computer online service, internet or other
      device capable of electronic data storage to contact the
      victim, (2) the victim was a child or person believed by the
      defendant to be a child, and (3) the defendant seduced,
      solicited, lured, or enticed the victim to engage in any illegal
      act as charged in the indictment or information under
      chapters 794, 800, or 827, or other unlawful sexual conduct.

      This review indicates that all the elements of soliciting a
      child are included within the offense of traveling to meet a
      minor; traveling to meet a minor contains an element that is
      not an element of soliciting a child, namely, knowingly
      traveling within the state.      Therefore, because all the
      elements of soliciting are included in the traveling offense, it
      appears that section 775.021(4)(b)3. applies to counts III and
      IV, and the elements of the lesser offense are subsumed in
      the greater offense.

Id. at 491 (citations omitted).

    Additionally, the reasoning in Shelley supports a finding that the
convictions here violated double jeopardy. The court wrote: “[B]ecause
the statutory elements of solicitation are entirely subsumed by the
statutory elements of traveling after solicitation, the offenses are the
same for purposes of the Blockburger same-elements test codified in
section 775.021(4), Florida Statutes.” 176 So. 3d at 919. The fact that
the court in Shelley was addressing sections 847.0135(3)(b) and (4)(b) is
of no significance. The reasoning applies equally to sections (3)(a) and
(4)(a), as the elements of section (3)(a) are entirely subsumed by the
elements of section (4)(a) and thus the dual convictions violate double
jeopardy. See Meythaler v. State, 175 So. 3d 918, 920 (Fla. 2d DCA
2015) (finding that the analysis in Shelley applied to convictions for
violations of sections 847.0135(3)(a) and (4)(a)).

   The state attempts to evade the Blockburger analysis by arguing that
the solicitation and traveling offenses were separated in time. This
argument is based solely on a twenty-one minute break in the text
conversation, which occurred after the detective texted that he would be
right back. The state relies on a portion of Hartley, in which this court
recognized that separate punishments for multiple solicitations of a

                                     6
minor is permissible if there are “separations of time between each of the
crimes charged.” Hartley, 129 So. 3d at 490. However, this case does
not involve such a scenario. Here, the state charged one solicitation;
that solicitation charge formed the basis for the traveling charge and was
entirely subsumed by the traveling charge. Under these circumstances,
double jeopardy bars dual convictions. See Shelley, 176 So. 3d at 919
(“Accordingly, because Shelley’s dual convictions for solicitation and
traveling after solicitation based upon the same conduct impermissibly
place him in double jeopardy, the Second District properly vacated
Shelley’s solicitation conviction and sentence because solicitation is the
lesser offense.”) (emphasis added).

   Based on the foregoing, we affirm the convictions on counts two
through four, but we reverse the conviction and sentence on count one
and remand for the trial court to vacate the conviction and sentence on
count one and to resentence the appellant on the remaining counts. We
find no merit to the other issues the appellant raises on appeal and
decline to address them.

   Affirmed in part, Reversed in part, and Remanded for vacation of count
one conviction and sentence, and resentencing on counts two through four.

GROSS and GERBER, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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