          Third District Court of Appeal
                                  State of Florida

                              Opinion filed April 10, 2019.
            Not final until disposition of timely filed motion for rehearing.

                                  ________________

                                  No. 3D17-1881
                           Lower Tribunal No. 16-121-A-K
                                ________________

                                  William Baker,
                                       Appellant,

                                           vs.

                               The State of Florida,
                                       Appellee.


         An Appeal from the Circuit Court for Monroe County, Wayne M. Miller,
Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

     Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney
General, for appellee.


Before FERNANDEZ, LOGUE and SCALES, JJ.

                       ON MOTION FOR CLARIFICATION

         SCALES, J.
      Appellant William Baker has filed a motion for clarification. We grant the

motion, withdraw the previous opinion, and substitute the following in its place.

      William Baker appeals his convictions after a jury found him guilty of

violating sections 847.0135(3)(b) and (4)(b) of the Florida Statutes. These laws,

respectively, prohibit the use of a computer service or device to solicit the parent of

a child to consent to the child engaging in an unlawful sexual activity; and prohibit

travel to meet the child for an unlawful sexual activity facilitated by the parent after

solicitation. Baker makes several arguments on appeal.1 We determine that only

Baker’s double jeopardy argument has merit and, based on the Florida Supreme

Court’s recent decision in Lee v. State, 258 So. 3d 1297 (Fla. 2018), we vacate

Baker’s solicitation conviction and remand to the trial court to resentence Baker on

the travel after solicitation charge.

      I. Relevant Factual and Procedural Background

      As part of an undercover investigation, agents of The Department of

Homeland Security (DHS) placed a Florida Keys Craigslist ad that read as follows:

      Caution just met up with fun Key West mom who had an ad called
      taboo family playtime and she is trying to find a guy to hook up with
      her 13-year-old daughter. I thought it was RP and the girl would be
      legal but she showed up and is definitely underage. I want to put it out
      there so no one would get in trouble. The ad was flagged and is gone

1
  Baker also contended that: (i) he was entitled to a judgment of acquittal because
the State failed to overcome what he presented as a reasonable hypothesis of
innocence; and (ii) there was error in a standard instruction given to the jury. We
find no merit in these arguments.

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      now and all I know about her is her name is Vicky and her daughter’s
      name is Danielle and Vicky uses the e-mail address
      sassyprincess305@google.

      On March 1, 2016, Baker sent an email to the address in the ad, prompting,

over the ensuing two days, an exchange of sexually explicit emails between Baker

and an undercover DHS agent posing as the mother of a thirteen-year old child. The

emails established that Baker was responding to the undercover agent’s offering of

sex with a minor.

      On March 3, 2016, the email exchange culminated with Baker and the

undercover agent setting up a meeting at a Key West Burger King restaurant for

Baker to meet the undercover agent and her “daughter.” At approximately 1 p.m. on

March 3, 2016, Baker drove into the Burger King parking lot where officers from

the Key West Police Department arrested him. Ultimately, by a Second Amended

Information, the State charged Baker with violating section 847.0135(4)(b), the

travel after solicitation charge, a second degree felony; and section 847.0135(3)(b),

the solicitation charge, a third degree felony.2


2
  Count 1 of the Second Amended Information, citing section 847.0135(4)(b) (the
travel after solicitation offense), alleged as follows:

      Defendant, William Roberts Baker on or about March 3, 2016 in the
      County of Monroe and State of Florida, did travel any distance within
      this state by any means, or attempted 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 defendant to be a

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        The jury convicted Baker of both counts and the trial court sentenced Baker

to five years for the solicitation offense (Count 2) and eight years for the travel after

solicitation offense (Count 1). For the traveling offense, the trial court also imposed

two years of community control followed by five years of probation. The trial court

also ordered sex offender designation.

      Baker timely appealed the judgment against him. As mentioned earlier, only

the double jeopardy challenge is meritorious.


      child after using a computer on-line service, Internet service, or local
      bulletin board service, or any other device capable of electronic data
      storage or transmission to seduce, solicit, lure, or entice, or attempt to
      seduce, solicit, lure or entice a parent, legal guardian or custodian of a
      child or another person believed to be the parent, guardian or custodian
      of a child to consent for the child or another person believed by the
      defendant to be a child to engage in any illegal act described in chapter
      794, chapter 800, or chapter 827, or to engage in other unlawful sexual
      conduct with a child, contrary to F.S. 847.0135(4)(b).

Count 2 of the Second Amended Information, citing section 847.0135(3)(b) (the
solicitation offense), alleged as follows:

      Defendant William Roberts Baker on or about March 2, 2016, in the
      County of Monroe and State of Florida, did knowingly utilize a
      computer on-line service, Internet service, or local bulletin board
      service, or any other device capable of electronic data storage or
      transmission to seduce, solicit, lure, or entice, or attempt to seduce,
      solicit, lure or entice, a parent, legal guardian or custodian of a child or
      another person believed by the defendant to be a parent, legal guardian
      or custodian of a child, to consent to the participation of the child or
      with another person believed by the defendant 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, contrary to F.S.
      847.0135(3)(b).

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      II. Analysis3

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

Court determined that the statutory elements of solicitation are entirely subsumed by

the statutory elements of traveling after solicitation, and therefore, double jeopardy

prohibits separate convictions based on the same solicitation conduct. In order for a

defendant to be punished for both violations, the state must plead and prove that the

solicitation forming the basis of the travel after solicitation charge is separate and

distinct from the solicitation forming the basis of the solicitation charge. Id.

      In this case, the record plainly indicates that on March 2nd, Baker, through

extensive emails with the DHS undercover agent, used a computer device to solicit

and entice a person whom he believed to be the parent of a child to participate in

sexual conduct specifically criminalized in section 847.0135(3)(b). The record also

establishes that, on the following day, March 3rd, Baker and the undercover agent

again exchanged emails establishing solicitation, and that Baker then traveled to

meet the child with whom Baker would engage in unlawful sexual activity in

violation of section 847.0135(4)(b).




3
 We review double jeopardy challenges de novo. Pizzo v.State, 945 So. 2d 1203,
1206 (Fla. 2006).


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       Although the record establishes the separate instances of solicitation

underpinning the two charges, the Florida Supreme Court recently held that, when

determining whether separate acts of solicitation support the two convictions, a

reviewing court’s inquiry is limited to the charging document – here, the Second

Amended Information. Lee, 258 So. 3d at 1303-04. The Supreme Court in Lee

plainly stated: “[T]to determine whether multiple convictions of solicitation of a

minor . . . 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.” Id. at 1304. While the

Second Amended Information charging Baker with both offenses states two separate

dates – March 2nd as the date of the solicitation offense and March 3rd as the date

of the travel after solicitation offense – it is not clear from this charging document

that the solicitation forming the basis of each charge is a separate and distinct act of

solicitation.

       Indeed, the charging document in Lee similarly identifies the solicitation

occurring “between December 22, 2013, and January 1, 2014,” while the traveling

offense occurred on a separate date “on or about January 2, 2014.” Id.

Notwithstanding the separate dates alleged in the separate counts, the Lee Court

determined that the information in that case had not made clear that the State relied

on separate conduct to charge the two offenses. Id. We note that neither the State, in



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charging Baker, nor the trial court in entering the judgment against Baker, had the

benefit of Lee. We do have the benefit of Lee, and therefore, are compelled to vacate

Baker’s conviction for solicitation and remand the case to the trial court for the

resentencing of Baker on the travel after solicitation charge.

      To be clear, under Lee, if the State wishes to charge a defendant for separate

offenses under sections 847.0135(3) and (4), in order to avoid a double jeopardy

violation, the charging document must be clear, on its face, that the conduct

constituting solicitation for one offense is separate and distinct from the conduct

constituting solicitation under the other offense.

      Affirmed in part; reversed in part, with instructions.




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