          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D13-4464
                  _____________________________

TYLER SHERMAN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.

                            May 18, 2018

         ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

     This court previously affirmed Sherman’s convictions,
Sherman v. State, 160 So. 3d 494 (Fla. 1st DCA 2015), but the
supreme court quashed that decision and remanded for
reconsideration in light of State v. Shelley, 176 So. 3d 914 (Fla.
2015). On remand, we again affirm. As in today’s decision in
Dygart v. State, 1D13-4977 (Fla. 1st DCA May 18, 2018), and as
required by our en banc decision in Lee v. State, 223 So. 3d 342,
351-52 (Fla. 1st DCA 2017) (en banc), review granted, SC17-1555
(Feb. 8, 2018), we conclude that because the record shows multiple,
discrete solicitations, Sherman cannot meet his burden of showing
that his separate convictions for solicitation (in violation of section
847.0135(3)(a), Florida Statutes) and traveling after solicitation
(in violation of section 847.0135(4)(a)) were “based on the same
conduct.” See Lee, 223 So. 3d at 351 (quoting Shelley, 176 So. 3d at
919).

     In Shelley, the supreme court held that separate convictions
for both solicitation and traveling after solicitation cannot stand if
they are based on the same conduct. Id. The traveling and
solicitation counts both require proof that the defendant solicited
a child (or someone he thought was a child), and under Shelley, a
single solicitation cannot form the basis of both convictions. See
Lee, 223 So. 3d at 351-52. But where a defendant’s conduct
includes more than one solicitation, Shelley does not require the
State to ignore all the solicitations but one. “Shelley does not
disturb well-established precedent allowing for multiple
punishments where a defendant commits multiple criminal acts.”
Id. at 351. Instead, “the holding in Shelley is limited to cases where
the defendant is convicted of both solicitation and traveling after
solicitation based on a single act of solicitation.” Id.

    In this case, the record demonstrates that Sherman’s two
convictions did not turn on a single solicitation. Using two separate
email accounts, Sherman solicited a child (or someone he thought
was a child) several times before driving to her house for sex.
Sherman’s multiple solicitations justified his multiple charges and
his multiple convictions. This is therefore not about “uncharged
conduct”: Sherman was charged with two crimes and convicted of
two crimes, and the State did not rely on the “same conduct” for
both. There is no double-jeopardy violation.

    AFFIRMED.

WOLF and WINSOR, JJ., concur; MAKAR, J., concurs in result
dubitante with opinion.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________



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MAKAR, J., concurring in result dubitante.

     Held to a mirror, this case looks just like State v. Shelley, 176
So. 3d 914 (Fla. 2015), which granted relief to Shelley based on
double jeopardy principles. Both Sherman and Shelley were
charged with a single count of unlawful use of solicitation via
computer service in violation of section 847.0135(3), Florida
Statutes, and a single count of traveling after solicitation to meet
a minor in violation of section 847.0135(4). 1 As in Shelley, the
State did not charge Sherman with separate and distinct counts of
solicitation; only one count was charged. Under these
circumstances, Shelley holds that dual convictions for these two
offenses violates the Double Jeopardy clauses 2 because the
charged solicitation count is subsumed in the charged traveling
after solicitation count. Shelley’s solicitation spanned “several
days” but Sherman’s occurred on the same day that he traveled to
meet the fictitious minor, 3 making Sherman’s claim that much
stronger.



     1 Sherman was charged with violations of (3)(a) and (4)(a) and
Shelley was charged with violations of subsections (3)(b) and 4(b).
The only significant difference between subsections (a) and (b) is
that the former applies to “a child or another person believed by
the person to be a child” while the latter applies to “a parent, legal
guardian, or custodian of a child or a person believed to be a
parent, legal guardian, or custodian of a child[.]” § 847.0135(3) &
(4), Fla. Stat.
     2 See Amend. V, U.S. Const. (“No person shall . . . be subject
for the same offence to be twice put in jeopardy of life or limb.”);
Art. I, § 9, Fla. Const. (“No person shall be . . . twice put in jeopardy
for the same offense.”).

     3 As to Sherman, each count alleged that the act of solicitation
and travel occurred on October 15, 2011. As to Shelley, the two
charged offenses “relied upon the same conduct” with the alleged
solicitation occurring “[o]ver the course of several days” via e-mail,
instant messenger, and text messaging. Shelley, 176 So. 3d at 916-
17.

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     Shelley got relief, but Sherman doesn’t due to our decision in
Lee v. State, 223 So. 3d 342, 351-52 (Fla. 1st DCA 2017), reh’g
denied (Aug. 8, 2017), rev. granted, SC17-1555 (Feb. 8, 2018),
which does not limit our review to charged conduct (here, the
single count of solicitation). Instead, our Court goes beyond
charged conduct and probes the record in search of additional
uncharged solicitations; if we can find two or more, the double
jeopardy evaporates, which is why conflict exists between Lee and
cases from other districts. As the Second District in Shelley said:

    The State asserts 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. We are not persuaded by this
    argument. 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.

Shelley v. State, 134 So. 3d 1138, 1141-42 (Fla. 2d DCA 2014)
(emphasis added), approved, 176 So. 3d 914 (Fla. 2015); see also
Stapler v. State, 190 So. 3d 162, 164-65 (Fla. 5th DCA 2016)
(“While we acknowledge that the State can convict a defendant on
multiple counts of solicitation where multiple counts are alleged
and established, we join the Second District Court of Appeal in
declining to deny a double-jeopardy claim ‘based on uncharged
conduct simply because it could have been charged.’”) (footnote
omitted); Pamblanco v. State, 199 So. 3d 507 (Fla. 5th DCA 2016)
(finding a double jeopardy violation where “unlawful solicitation
and travel took place over several days in February 2010” such
that “the State could have charged Appellant with multiple counts
of solicitation and traveling with regard to the multiple offenses
occurring on multiple occasions. However, the information charged
Appellant with one count of solicitation and one count of traveling
based on the same conduct.”).

                                4
     In addition, the jury instructions and verdict form in this case
failed to tell the jury that “it must find two separate and distinct
acts of solicitation to convict the defendant on both the solicitation
and ‘traveling after solicitation’ counts (one solicitation would be
subsumed in the ‘traveling after solicitation’ count and the other
would have to be separate and distinct from the first to avoid a
double jeopardy violation).” See Dygart v. State, No. 1D13-4977,
slip op. at 8 (Fla. 1st DCA May 18, 2018) (Makar, J., concurring in
result dubitante). For this reason, it is impossible to exclude the
unconstitutional result that Sherman’s convictions for one count of
solicitation and one count of traveling after solicitation are based
on the same conduct. An easy fix exists to avoid this type of double
jeopardy problem, one that arises from a poorly-drawn information
and inadequate jury instructions and verdict form. See Lee, 223 So.
3d at 371 & 372 (Bilbrey, J., concurring in part, dissenting in part,
& Makar, J., concurring in part, dissenting in part); see also
Assanti v. State, 42 Fla. L. Weekly D1747 (Fla. 1st DCA Aug. 10,
2017) (Bilbrey, J., concurring in result); Straitiff v. State, No.
5D16-2913 (Fla. 5th DCA Oct. 13, 2017) (Lambert, J., concurring
and concurring specially).

     Nonetheless, I concur in the result in this case, because Lee is
binding, but it is with doubt due to Lee’s analytical approach, and
its conflict with Shelley and decisions of other districts.

                  _____________________________


Ethan Andrew Way, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel,
Assistant Attorney General, Tallahassee, for Appellee.




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