                  DISTRICT COURT OF APPEAL, FIRST DISTRICT
                               2000 Drayton Drive
                         Tallahassee, Florida 32399-0950
                          Telephone No. (850) 488-6151

                                     May 25, 2017


                                                CASE NO.: 1D14-1382
                                                L.T. No.: 01-2012-CF-003050-A


      MATTHEW JOSEPH DETTLE     v.    STATE OF FLORIDA
_________________________________________________________________
Appellant/Petitioner(s),              Appellee/Respondent(s)

BY ORDER OF THE COURT:

      Appellant’s motion for rehearing or certification, filed January 31, 2016, is denied.

LEWIS and WINSOR, JJ., CONCUR; BILBREY, J. DISSENTS WITH OPINION.


BILBREY, J., dissenting.

        I respectfully dissent from the denial of Appellant’s motions for rehearing and to
certify a question to the Florida Supreme Court as to the issue of double jeopardy.
However, I believe Appellant has conflict jurisdiction for Florida Supreme Court review
based on our original decision, which conflicts with State v. Shelley, 176 So. 3d 914,
919 (Fla. 2015), 1 as well as numerous cases from other Florida district courts as
discussed below.

        Appellant challenges his convictions, after jury trial and guilty verdicts, of 1)
traveling to meet a person believed to be a child after using a computer or device
capable of electronic data storage to solicit unlawful sexual conduct, pursuant to section
847.0135(4)(a), Florida Statutes (2012); 2) use of a computer online service or other
device capable of electronic data storage to seduce, solicit, lure, or entice, a person he
believed to be a child, under section 847.0135(3)(a), Florida Statues (2012); and 3)

1
  In State v. Shelley, 176 So. 3d 914 (Fla. 2015), the Florida Supreme Court approved
the decision of the Second District in Shelley v. State, 134 So. 3d 1138 (Fla. 2d DCA
2014), disapproved our decision in State v. Murphy, 124 So. 3d 323 (Fla. 1st DCA
2013), and thereby overruled any cases where this court found that the Legislature
intended separate punishment for the same acts of soliciting a minor and traveling to
effectuate the purpose of that solicitation. Murphy was binding on the trial judge when
Appellant was sentenced.
                                            1
unlawful use of a two-way communication device (cell phone) to further the commission
of a felony, under section 934.215, Florida Statutes (2012). In our original opinion we
properly rejected four of the issues raised by Appellant. In the original decision we also
rejected — incorrectly I now believe — part of his fifth issue that the multiple convictions
of the “same offense” based on the same conduct constitute double jeopardy.
Accordingly, I would affirm Appellant’s conviction for the greater offense of traveling to
meet a person believed to be a child after using a computer or device capable of
electronic data storage to solicit unlawful sexual conduct, pursuant to section
847.0135(4)(a), Florida Statutes, and vacate the convictions and sentences for the
lesser offenses in both counts II and III. 2

       This case is the result of a strategic ruse by the Alachua County Sheriff’s Office
where law enforcement personnel placed an advertisement for legal social interaction, 3
to which Appellant responded. Appellant and the officer then engaged in e-mail and
text communications. In the third exchange of messages — less than three hours after
Appellant’s first response — the officer claimed to be a 14-year-old girl, and Appellant
clearly believed that he was sending messages to a minor. Appellant continued to
communicate with the fictitious minor and he initiated the suggestion of sexual activity
on the second day after his initial response to the advertisement. 4

       The content of the ensuing messages over the following two weeks, from July 19
to August 3, 2012, and the fact that Appellant drove over 100 miles on August 3, 2012,
to the address provided by the officer as the residence of the supposed 14-year-old,
were not in question. What is in question on appeal is the legal issue of whether the
convictions for all three offenses as charged in the three-count information withstand
constitutional scrutiny under a double jeopardy analysis and current governing case law.
“A determination of whether double jeopardy is violated based on undisputed facts is a
legal determination; thus, this Court’s review is de novo.” State v. Drawdy, 136 So. 3d
1209, 1213 (Fla. 2014). Appellant unsuccessfully raised the issue of double jeopardy
during the jury instruction conference, at sentencing, and in a postconviction motion
raising sentencing error. Even if he had not raised the issue, “a violation of a
defendant’s substantive double jeopardy rights constitutes fundamental error [which]
may be raised for the first time on appeal.” Holt v. State, 173 So. 3d 1079, 1081 (Fla.
5th DCA 2015) (considering double jeopardy issue applied to convictions under §§
847.0135(4) and 934.15, Fla. Stat.).




2
  In the initial opinion we vacated the conviction and sentence for count III. That
remains unaltered on rehearing.
3 The advertisement stated, “Tired of bein Bored – w4m – 99 (N FL) Sittin at home, tired

of bein bored.”
4 The trial court found that the carefully crafted messages by the officer did not

constitute entrapment of Appellant. This was one of the other issues raised on appeal
but I agree that there was no error in this ruling under the facts of this case.

                                             2
       Count I of the information alleged that the traveling offense occurred “on or about
August 3, 2012.” Counts II and III alleged that the computer online solicitation and the
use of a two-way communication device to further the commission of a felony took place
“from, on, or between July 21, 2012 through, on, or about August 3, 2012.” The
evidence adduced at trial included multiple communications between Appellant and the
Alachua County Sheriff’s deputy posing as the minor, several of which were sufficient to
prove solicitation of unlawful sexual conduct and use of a two-way communication
device to further the commission of a felony. However, there is no way to be certain
that Appellant was not convicted in violation of double jeopardy of the same acts he
committed on August 3, 2012, when the Appellant traveled after soliciting and unlawfully
used a two-way communication device to solicit the purported minor.

        As explained by the Florida Supreme Court, “the Constitution prohibits subjecting
a person to multiple prosecutions, convictions, and punishments for the same criminal
offense. The constitutional protection against double jeopardy is found in both article I,
section 9, of the Florida Constitution and the Fifth Amendment to the United States
Constitution.” Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). The U.S. Supreme
Court summarized the test to determine whether there are “two offenses or only one” in
Blockburger v. United States, 284 U.S. 299 (1932). This “Blockburger test” to determine
if multiple convictions and punishments are for “the same offense” or separate offenses
is codified in section 775.021(4), Florida Statutes, which provides in part:

             (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; and the sentencing judge
      may order the sentences to be served concurrently or consecutively. 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, Fla. Stat. (2012).

       Florida courts have applied the Blockburger test to the offenses described in
sections 847.0135(3), 847.0135(4), and 934.215, Florida Statutes, in cases similar to
this one — where a defendant engages in electronic and cell phone communications

                                            3
with a law enforcement officer posing as a minor, solicits the supposed minor for
unlawful sexual conduct, and travels after the solicitation for the purpose of engaging in
the unlawful sexual conduct. The Florida Supreme Court has deemed the offenses set
out in sections 847.0135(3) (soliciting a minor) and 847.0135(4) (traveling after soliciting
a minor) “the same for purposes of the Blockburger same-elements test codified in
section 775.021(4), Florida Statutes.” Shelley, 176 So. 3d at 919. Likewise, this court
has deemed the violation of sections 847.0135(4) and 934.215 to be the same offenses
under the Blockburger test because “ʽthe proof of the unlawful use of a two-way
communications device was subsumed within the proof of the soliciting and traveling
offenses in this case.’” Hamilton v. State, 163 So. 3d 1277, 1278 (Fla. 1st DCA 2015)
(quoting Mizner v. State, 154 So. 3d 391 (Fla. 2d DCA 2014)); see also Batchelor v.
State, 193 So. 3d 1054 (Fla. 2d DCA 2016); Holubek v. State, 173 So. 3d 1114 (Fla. 5th
DCA 2015).

       “However, the prohibition against double jeopardy does not prohibit multiple
convictions and punishments where a defendant commits two or more distinct criminal
acts.” Hayes v. State, 803 So. 2d 695, 700 (Fla. 2001) (armed robbery and subsequent
theft under facts in that case were “sufficiently separate in time, place and
circumstances . . . to constitute distinct and independent criminal acts.”). Courts have
looked to the allegations in the charging documents, the provisions of the verdict forms,
and the proof adduced at trial to determine if distinct criminal acts to support the dual
convictions were proven by the State.

       For example, in State v. Meshell, 2 So. 3d 132 (Fla. 2009), dual convictions for
lewd and lascivious battery were affirmed where the acts occurred within seconds of
each other, but the information alleged different anatomical combinations. As the
Florida Supreme Court in Meshell observed, “Florida courts have focused on whether
the acts forming the basis of the charges are ‘distinct.’” Id. at 134. “Distinct acts” are
“acts of a separate character and type requiring different elements of proof.” Id. at 135.
On the other hand, where “neither the charging information nor the jury verdict form
included language clearly predicating the disputed charges on two distinct sex acts,” it
was “impossible for this court to know if the jury convicted appellant for one act of
sexual battery or two distinct acts” when the evidence produced at trial showed
overlapping acts. Partch v. State, 43 So. 3d 758, 761-62 (Fla. 1st DCA 2010).
Accordingly, in Partch, the “distinct acts exception” to the double jeopardy rule did not
apply and the conviction was reversed. Id. at 763. See also Graham v. State, 170 So.
3d 141, 143 (Fla. 1st DCA 2015), aff’d, 207 So. 3d 135 (Fla. 2016) (affirming a
conviction over a double jeopardy challenge where “the information and the jury verdict
demonstrate that the charges were predicated on two distinct acts”).

       There are times when although the information did not charge two separate acts,
the proof at trial was clear that distinct acts were involved and therefore double jeopardy
was not implicated. 5 In Fravel v. State, 188 So. 3d 969, 972 (Fla. 4th DCA 2016),

5
   It would arguably be simpler to rely solely on the specific acts alleged in the
information without regard to what was proven at trial. This appears to be the approach
                                             4
convictions for two counts of fraudulent use of personal identification were affirmed over
a double jeopardy challenge where the evidence at trial showed two different banks and
therefore “clearly distinguished between two separate counts.” In Nicholson v. State,
757 So. 2d 1227 (Fla. 4th DCA 2000), the convictions for two counts of throwing deadly
missile were affirmed over a double jeopardy challenge based on the proof at trial of two
bricks thrown into two windows. In Nicholson, “the evidence at trial clearly distinguished
between the two separate offenses.” Id. at 1228. In Vizcon v. State, 771 So. 2d 3, 6
(Fla. 3d DCA 2000), convictions for 29 counts of money laundering were affirmed over a
double jeopardy challenge with a citation to Nicholson’s requirement that the evidence
at trial clearly distinguish separate offenses to avoid double jeopardy.

        Section 847.0135(3) does provide — for multiple solicitations — that “[e]ach
separate use of a computer online service, Internet service, . . . wherein an offense
described in this section is committed may be charged as a separate offense.” Here,
the State argues that Appellant could have been charged with multiple counts of
solicitation based on at least four completed criminal acts with temporal breaks between
them where Appellant requested or offered sexual activity involving the “minor.” 6 While
the evidence presented at trial could have supported multiple charges, the State
charged only one count of solicitation and one count of travel after solicitation. In
addition, the amended information charged that the solicitation occurred over a range of
dates, including the date charged for the travel. Based on this, it is impossible to know
whether the jury “clearly distinguished” between the separate acts or whether they
convicted the Appellant for the same offense accruing on August 3, 2012, since the
Appellant was not charged with separate acts of solicitation as section 847.0135(3)
would allow.

       In Mizner, the information charged one count each of soliciting a minor, traveling
after solicitation, and unlawful use of two-way communications device; and charged
each of the offenses “over the same time period, from November 1, 2011, to November
4, 2011.” 154 So. 3d at 400. The Mizner court rejected the State’s argument on appeal

taken by other districts. See Honaker v. State, 199 So. 3d 1068 (Fla. 5th DCA 2016);
Mizner v. State, 154 So. 3d 391 (Fla. 2d DCA 2014). But such an approach is
precluded by our recent case McCarter v. State, 204 So. 3d 529 (Fla. 1st DCA 2016).
In McCarter, the proof at trial for the soliciting count consisted of multiple requests via
social media for nude pictures of a minor while the solicitation in the traveling after
solicitation count consisted of messages via smart phone to arrange in-person meetings
with the minor. McCarter could be reconciled with the cases from the other districts by
the approach I propose here to avoid conflict.
6 The issue in my view is not whether what was proven at trial could support multiple

charges, but whether we clearly know that the jury convicted the Appellant for separate
acts. If he was convicted of the same act of solicitation underlying all three offenses
with which he was charged, double jeopardy was violated. See Partch v. State, 43 So.
3d 758 (Fla. 1st DCA 2010); Batchelor v. State, 193 So. 3d 1054 (Fla. 2d DCA 2016);
Stapler v. State, 190 So. 3d 162 (Fla. 5th DCA 2016). Without specificity in the
information, a verdict form with separate acts listed, or clearly distinct acts proven at trial
there is no way to know.
                                              5
of the multiple convictions that double jeopardy did not apply because the evidence
“could support convictions for each offense as occurring during a separate criminal
episode.” Id. Because the State charged the offenses “as occurring during a single
criminal episode,” the court in Mizner affirmed the conviction for traveling after
solicitation (§ 847.0135(4)), and reversed the convictions for soliciting (§ 847.0135(3))
and unlawful use of two-way communications device (§ 934.215). Id.; see also Holt,
173 So. 3d at 1081 (information charged single counts of unlawful use and traveling,
both alleged to have occurred on or about the same day; pursuant to State’s charges as
single criminal episode, court could not assume offenses were predicated on distinct
acts).

       Similarly, in Hamilton, convictions for both traveling to meet a minor and unlawful
use of a two-way communications device were challenged on double jeopardy grounds.
163 So. 3d at 1278. This court reversed the unlawful use conviction because that
offense did not contain any element not subsumed in the traveling count, and because,
although the evidence at trial showed unlawful uses of Hamilton’s cell phone “over three
or four days in May of 2012,” the information alleged that each offense occurred “on or
about” May 4, 2012. Id. Thus, “the state did not charge the offenses as occurring
during separate criminal episodes.” Id. at 1279.

        The deficiency in the charging document required reversal in Stapler v. State,
190 So. 3d 162 (Fla. 5th DCA 2016), as well. There, dual convictions for soliciting and
travel after soliciting were challenged on double jeopardy grounds. Id. at 163-64.
Acknowledging that sections 847.0135(3) and 847.0135(4) contain the same elements,
“the only issue in this case is whether Stapler can be convicted of multiple solicitations
despite being charged with single counts of solicitation and traveling based on conduct
occurring over the same specified period of time.” Stapler, 190 So. 3d at 164. The
State in Stapler argued that the evidence established multiple violations sufficient to
justify convictions under both sections, but the court declined “to deny a double-
jeopardy claim ‘based on uncharged conduct simply because it could have been
charged.’” 190 So. 3d at 165 (quoting State v. Shelley, 134 So. 3d 1138, 1141-42 (Fla.
2d DCA 2014)).

        Recently, the unlawful use of a computer to solicit conviction was reversed in
Batchelor due to the possibility that the additional conviction for travelling after
solicitation was based on the same acts. The State had charged that both offenses
occurred “on or between June 10, 2013 and June 13, 2010,” but the court in Batchelor
held that it was “not at liberty to infer” from the record that the State charged the
defendant “with two distinct, chargeable offenses, separated in space or time.” 194 So.
3d at 1058. Discussing the same argument as the State makes here, the court in
Batchelor stated:

      Finally, the State argues that it is not possible to determine whether the
      defendant's use of his two-way communications device was the same as
      his use of a computer online service or internet service without looking at
      the underlying facts of the case. The State is on to something here, but its

                                            6
       analysis ignores the allegations of the charging document that it filed
       against Mr. Batchelor. One can imagine a scenario where convictions for
       both traveling to meet a minor and the unlawful use of a two-way
       communications device could be sustained. But such a scenario would
       require a charging document—unlike the one filed in this case—that
       distinguished the two acts as occurring separately, and that facts were
       adduced at trial to prove that the offenses were indeed committed as
       separate and distinct acts.

Id.

        In contrast, where the State charged separate episodes of solicitation, as allowed
by section 847.0135(3)(b), and alleged a clear temporal break between the illegal
solicitations, convictions under sections 847.0135(3) and 847.0135(4) were affirmed in
Barnett v. State, 159 So. 3d 922 (Fla. 5th DCA 2015). See also Hartley v. State, 129
So. 3d 486 (Fla. 4th DCA 2014) (each episode of solicitation charged on separate date;
reversing conviction for the solicitation charged on the same day as the travel offense
but affirming convictions for solicitations charged on other dates). We have previously
noted that double jeopardy might be avoided if, once the State discovers evidence of
multiple criminal communications, it timely amends its information to allege separate
solicitations other than the solicitation which caused the defendant to travel. Anderson
v. State, 190 So. 3d 1120, 1121 (Fla. 1st DCA 2016); see also Meythaler v. State, 175
So. 3d 918, 919 (Fla. 2d DCA 2015).

       Harmonizing the recent case law from our court and others, I would submit that
double jeopardy can be avoided for potentially overlapping offenses if the information
charges distinct acts, if the verdict form separates the distinct acts, or if the proof at trial
clearly distinguishes between separate acts such that a defendant could not have been
convicted of the same act. Here, 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 was
such that I cannot clearly determine that the acts underlying Appellant’s conviction were
separate. Therefore I would find that a double jeopardy violation has occurred.

         As the Florida Supreme Court has instructed, when multiple convictions violate
double jeopardy, the convictions and sentences for the lesser offense or offenses
should be vacated, and the greater offense affirmed. Shelley, 176 So. 3d at 920; State
v. Tuttle, 177 So. 3d 1246 (Fla. 2015). Using a computer to solicit a minor and unlawful
use of a two-way communication device are lesser offenses, and traveling after
soliciting a minor is the greater offense, because the elements of the lesser offenses are
subsumed in the greater offense. Hamilton, 163 So. 3d at 1278. In light of the
foregoing, I would affirm the conviction under count I for violation of section
847.0135(4)(a), traveling to meet a person believed to be a child after using a computer
or device capable of electronic data storage to solicit unlawful sexual conduct. I would
vacate the convictions and sentences for both counts II and III as violations of the
prohibition on double jeopardy. Amend. V, U.S. Const.; Art. I, § 9, Fla. Const.



                                               7
        Because the original opinion conflicts with numerous opinions from other
districts, I would also certify conflict or a question of great public importance to the
Florida Supreme Court. See Art. V, § 3(b)(4), Fla. Const.

               I HEREBY CERTIFY that the foregoing is (a true copy of) the original
court order.

       Served:

Hon. Pamela Jo Bondi, A. G.      Hon. Andy Thomas, P.D.            Gilbert A. Schaffnit
Thomas H. Duffy, A.A.G.          Glen P. Gifford, A. P. D.         Courtenay H. Miller, A.P. D.
Justin D. Chapman, A. A. G.      Jessica Judith Dasilva            Hon. J. K. "Jess" Irby, Clerk




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