         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


JOEY HUGHES,

              Appellant,

 v.                                                                 Case No. 5D14-4516

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed October 21, 2016

Appeal from the Circuit Court
for Lake County,
Don F. Briggs, Judge.

James S. Purdy, Public Defender,
and Ailene S. Rogers, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.


WALLIS, J.

       Joey Hughes ("Appellant") appeals his convictions and sentences after pleading

nolo contendere to use of a computer to solicit a child for unlawful sexual conduct

("solicitation"), in violation of section 847.0135(3)(a), Florida Statues (2014), and traveling

to meet a child to engage in unlawful sexual conduct ("traveling after solicitation"), in
violation of section 847.0135(4)(a), Florida Statutes (2014). We affirm the trial court's

denial of Appellant's dispositive motion to dismiss without discussion. Finding that

Appellant's dual convictions for solicitation and traveling after solicitation violate the

prohibition against double jeopardy, we reverse and remand, instructing the trial court to

vacate Appellant's conviction and sentence for solicitation.

       On February 3, 2014, a detective with the Lake County Sheriff's Office responded

via email to Appellant's ad in the "Casual Encounters" section on Craigslist, purporting to

be a fourteen-year-old girl. Appellant and the detective exchanged emails and text

messages over the next several hours, in which Appellant discussed performing various

inappropriate sexual acts with the detective. After Appellant and the detective discussed

the detective's location in Clermont, referring to a nearby steakhouse as a landmark,

Appellant stated that he would like to meet soon. In response, the detective offered to

meet Appellant at the aforementioned steakhouse. Appellant explained that, because he

had to wake up at 2 a.m. for a 14-hour workday, their meeting would have to wait. After

confirming the location of the steakhouse and that the detective would be available after

2 or 3 p.m. the next day, they ended their communication at 9:18 p.m., agreeing to meet

in person the following afternoon. Appellant stated that he would message the detective

at approximately 3 p.m.

       At 2:29 p.m. on February 4, 2014, the detective texted Appellant. After exchanging

messages referencing the previous night's conversation, Appellant asked the detective

how long it would take her to walk to "that steak house." She guessed 10 minutes, and

he responded, "ahhh kk ill let you know when im close if you still want to meet." Appellant

further stated, "its just a meet up till dark." After Appellant clarified the statement, the




                                             2
detective stated, "oh… i see. so after dark.. we get to do the things we talked about."

When Appellant asked whether a local Wendy's would be closer, the detective stated "the

[steak house] is closer . . . i can meet u there n we can go to the wendys." Nonetheless,

Appellant directed the detective to "come to wendys." Shortly after Appellant notified the

detective that he was parked near Wendy's at 4:27 p.m., law enforcement arrested him.

       The State charged Appellant by information with one count of solicitation and one

count of traveling after solicitation. Appellant moved to dismiss the charges, arguing

objective and subjective entrapment. The trial court denied Appellant's motion to dismiss

after a hearing. Thereafter, Appellant entered an open plea of nolo contendere to both

charges, reserving the right to appeal the trial court's denial of his motion to dismiss. The

trial court sentenced Appellant to forty-two months' incarceration on each count, to run

concurrently.

       Following Appellant's convictions and sentences, the Florida Supreme Court

released its opinion in State v. Shelley, 176 So. 3d 914 (Fla. 2015). In Shelley, the Court

explained that "because 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." Id. at 919 (citation omitted). Thus, the court concluded that "double jeopardy

principles prohibit separate convictions based upon the same conduct." Id. Where dual

convictions for traveling and solicitation violate double jeopardy, "the proper remedy is to

vacate the solicitation conviction because it is the lesser offense." Senger v. State, 41

Fla. L. Weekly D1259, D1261 (Fla. 5th DCA May 27, 2016) (citing Shelley, 176 So. 3d at

919); see also Stapler v. State, 190 So. 3d 162, 165 (Fla. 5th DCA 2016).




                                             3
testified, in support of his entrapment defense at the hearing on his motion to dismiss,

that he had no intention of contacting "Steele" again on February 4, 2014, and would not

have ever contacted her again, if she had not contacted him first.

       In my view, the February 3, 2014 conduct constituted a separate criminal act from

the conduct occurring on February 4, 2014, because the February 3, 2014 solicitation

was charged separately from the criminal act underlying the February 4, 2014 traveling

to meet a minor count and the temporal break of seventeen hours was sufficient to

separate the conduct. See Hartley v. State, 129 So. 3d 486, 491 (Fla. 4th DCA 2014)

(noting double jeopardy is not violated when more than one charge is brought where there

is a temporal break between computer conversations and there is not one continuous

criminal act); Hammel v. State, 934 So. 2d 634, 636 (Fla. 2d DCA 2006) (same); see also

McCarter v. State, 41 Fla. L. Weekly D2100 (Fla. 1st DCA Sept. 8, 2016); Welch v. State,

189 So. 3d 296, 302 (Fla. 2d DCA 2016); Barnett v. State, 159 So. 3d 922, 925 (Fla. 5th

DCA 2015) (finding that a two day gap between the solicitation conduct and the traveling

to meet a minor conduct was a sufficient temporal break). The critical factor is not the

actual length of the temporal break, but whether that break, however long it lasted,

provided sufficient time for the defendant to "pause, reflect, and form a new criminal

intent" such that subsequent conduct constitutes a separate criminal episode.          See

Anthony v. State, 108 So. 3d 1111, 1119 (Fla. 5th DCA 2013) (finding that false

statements made several hours apart on the same day in two different police interviews

were separate criminal episodes (citing Cabrera v. State, 884 So. 2d 482, 484 (Fla. 5th

DCA 2004))). Based on Appellant's testimony that he had no intention of ever contacting

"Steele" again after February 3, 2014, it is apparent that Appellant had the opportunity "to



                                             7
would have undoubtedly occurred, especially considering Appellant was charged with

traveling to meet a minor on that same day. See Shelley, 176 So. 3d at 919 (holding

double jeopardy bars dual convictions for solicitation and traveling based on the same

conduct); see also Sang Youn Kim v. State, 154 So. 3d 1168, 1169 (Fla. 2d DCA 2015)

(vacating solicitation offense where the information alleged it occurred on the same day

as the traveling offense).

       Furthermore, the majority opinion's speculation regarding what might have

happened to the timeline but for Appellant's work schedule or if the timing of the initial

communication had been different ignores Appellant's testimony in support of his

entrapment defense. Appellant's testimony shows that his criminal intent on February 3,

2014, did not carry over to February 4, 2014. Instead, after the temporal break, Appellant

formed a new criminal intent on February 4, 2014, after "Steele" reinitiated contact.

Accordingly, I would affirm.




                                            9
BERGER, J., concurring in part; dissenting in part.                    Case No. 5D14-4516

       I concur in the majority’s decision to affirm the trial court’s denial of Appellant’s

dispositive motion to dismiss for entrapment. However, because I do not believe that

Appellant’s dual convictions for solicitation of a minor on February 3, 2014, and traveling

after solicitation to meet a minor on February 4, 2014, violate double jeopardy in this

particular case as they were separate and distinct criminal acts, I respectfully dissent.

       In this case, the initial paragraph of the amended information charged that the

conduct in Count I, soliciting a minor, occurred on February 3, 2014. The amended

information further alleged that Count II, traveling to meet a minor, occurred on February

4, 2014. Thus, Count I only addressed Appellant’s conduct on February 3, 2014, and

Count II only addressed his conduct on February 4, 2014. The charges do not overlap.

       Moreover, the communication on February 3, 2014, between Appellant and the

detective posing as the fictitious fourteen-year-old "Samantha Steele" included sexually

explicit text messages and ended at 9:18 p.m. without any concrete plans to meet other

than plans to text each other the next day. "Steele" sent Appellant a text at 2:29 p.m. on

February 4, 2014. On that date, Appellant engaged in some sexual conversation with

"Steele," though less than the previous night, and made arrangements to travel to meet

"Steele" in Clermont, Florida. It is important to this analysis that the State did not include

any of the solicitation conduct that occurred on February 4, 2014, in the soliciting a minor

count.1 Indeed, the record is clear that Appellant indicated he could not meet "Steele" on

February 3, 2014, because he had to work early the next morning.              Appellant also



       1Appellant's argument that the words "on or about" in the information encompass
both dates is without merit as February 4, 2014, was explicitly mentioned in Count II and
could have been explicitly mentioned in regards to Count I if the State had so desired.
                                              6
testified, in support of his entrapment defense at the hearing on his motion to dismiss,

that he had no intention of contacting "Steele" again on February 4, 2014, and would not

have ever contacted her again, if she had not contacted him first.

       In my view, the February 3, 2014 conduct constituted a separate criminal act from

the conduct occurring on February 4, 2014, because the February 3, 2014 solicitation

was charged separately from the criminal act underlying the February 4, 2014 traveling

to meet a minor count and the temporal break of seventeen hours was sufficient to

separate the conduct. See Hartley v. State, 129 So. 3d 486, 491 (Fla. 4th DCA 2014)

(noting double jeopardy is not violated when more than one charge is brought where there

is a temporal break between computer conversations and there is not one continuous

criminal act); Hammel v. State, 934 So. 2d 634, 636 (Fla. 2d DCA 2006) (same); see also

McCarter v. State, 41 Fla. L. Weekly D2100 (Fla. 1st DCA Sept. 8, 2016); Welch v. State,

189 So. 3d 296, 302 (Fla. 2d DCA 2016); Barnett v. State, 159 So. 3d 922, 925 (Fla. 5th

DCA 2015) (finding that a two day gap between the solicitation conduct and the traveling

to meet a minor conduct was a sufficient temporal break). The critical factor is not the

actual length of the temporal break, but whether that break, however long it lasted,

provided sufficient time for the defendant to "pause, reflect, and form a new criminal

intent" such that subsequent conduct constitutes a separate criminal episode.          See

Anthony v. State, 108 So. 3d 1111, 1119 (Fla. 5th DCA 2013) (finding that false

statements made several hours apart on the same day in two different police interviews

were separate criminal episodes (citing Cabrera v. State, 884 So. 2d 482, 484 (Fla. 5th

DCA 2004))). Based on Appellant's testimony that he had no intention of ever contacting

"Steele" again after February 3, 2014, it is apparent that Appellant had the opportunity "to



                                             7
pause, reflect, and form a new criminal intent" prior to his conduct on February 4, 2014.

See Welch, 189 So. 3d at 302 (quoting Hammel, 934 So. 2d at 635); Anthony, 108 So.

3d at 1119 (citing Cabrera, 884 So. 2d at 484); Partch v. State, 43 So. 3d 758, 761 (Fla.

1st DCA 2010) (citing Hayes v. State, 803 So. 2d 695, 700 (Fla. 2001)).

      The majority’s reliance on Shelley, Senger, and Mahar to support the conclusion

that Appellant's dual convictions violate double jeopardy in this case is misplaced. In

each of those cases, the State charged the defendants with solicitation and traveling on

the same date or on the same intervening dates. See Shelley v. State, 134 So. 3d 1138,

1142 (Fla. 2d DCA 2014), approved by State v. Shelley, 176 So. 3d 914 (Fla. 2015)

(finding dual convictions violated double jeopardy when “[t]he 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”);2 Senger v. State, 41 Fla. L. Weekly D1259 (Fla.

5th DCA May 27, 2016) (noting the State properly conceded error where the offense dates

alleged in the information overlapped); Mahar v. State, 190 So. 3d 1123, 1125 (Fla. 2d

DCA 2016) (“[W]e see no material difference between these facts and those in Shelley.”).3

This is a factual distinction with a difference. The State did not charge Appellant's

soliciting conduct on February 4, 2014, because, if it had, a double jeopardy violation



      2   It appears that there was uncharged solicitation conduct that occurred over the
course of several days in Shelley, but that only conduct from one day was actually
charged in the information. Shelley, 176 So. 3d at 916 (noting that the communications
occurred over the course of several days); Shelley, 134 So. 3d at 1141-42 (stating that
there were "three separate uses of computer devices" for solicitation "on the date charged
in the information," but that the State only charged the defendant with one of those uses
which occurred on the same day as the traveling to meet a minor offense).
      3  The initial brief filed in Mahar notes that the amended information charging Mahar
with solicitation and traveling alleged that the events occurred on or about March 22,
2013.
                                            8
would have undoubtedly occurred, especially considering Appellant was charged with

traveling to meet a minor on that same day. See Shelley, 176 So. 3d at 919 (holding

double jeopardy bars dual convictions for solicitation and traveling based on the same

conduct); see also Sang Youn Kim v. State, 154 So. 3d 1168, 1169 (Fla. 2d DCA 2015)

(vacating solicitation offense where the information alleged it occurred on the same day

as the traveling offense).

       Furthermore, the majority opinion's speculation regarding what might have

happened to the timeline but for Appellant's work schedule or if the timing of the initial

communication had been different ignores Appellant's testimony in support of his

entrapment defense. Appellant's testimony shows that his criminal intent on February 3,

2014, did not carry over to February 4, 2014. Instead, after the temporal break, Appellant

formed a new criminal intent on February 4, 2014, after "Steele" reinitiated contact.

Accordingly, I would affirm.




                                            9
