         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


SAMUEL D. STRAITIFF,

              Petitioner,
 v.                                                     Case No. 5D16-2913

STATE OF FLORIDA.

           Respondent.
________________________________/

Opinion filed October 13, 2017

Petition for Writ of Habeas Corpus,
A Case of Original Jurisdiction.

Samuel D. Straitiff, Orlando, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.

                             ON MOTION FOR REHEARING

PER CURIAM.

       We grant Petitioner’s motion for rehearing, in part, withdraw the December 15,

2016 unelaborated order denying his petition for writ of habeas corpus, and substitute the

following opinion in its stead.

       On the evening of January 8, 2012, a deputy with the Sumter County Sheriff’s

Department, posing as the mother of a fourteen-year-old daughter, posted an ad on

Craigslist looking for a man to have sex with the fictional minor. Petitioner responded to
the ad by e-mail and, shortly before midnight, discussed engaging in sexual activity with

the minor. Petitioner and the “mother” agreed that on the following day, Petitioner and

“daughter” would meet to engage in sexual activity. Petitioner and the “mother” e-mailed

each other that next afternoon, confirming the meeting that evening between Petitioner

and “daughter” for the sexual encounter. At 6:52 p.m. on January 9, 2012, Petitioner

arrived at the arranged location where he was promptly arrested by the Osceola County

Sheriff’s Department.

       Petitioner was charged with a single violation of section 847.0135(4)(b), Florida

Statutes (2011), which prohibits traveling to meet a minor to engage in unlawful sexual

conduct after using computer services or devices to make a prohibited solicitation. The

State also charged Petitioner with a single violation of section 847.0135(3)(b), which

prohibits the use of computer services or devices to solicit the consent of a parent or a

person believed to be the parent, legal guardian, or custodian of a child to engage in

unlawful sexual contact with the child. Lastly, Petitioner was charged with violating

section 800.04(4)(a) for attempting to engage in sexual activity with a person twelve years

of age or older but less than sixteen years of age.

       Petitioner was convicted at trial as charged. The trial court sentenced Petitioner

to serve seventy-five months in prison for the traveling conviction. For the other two

convictions, Petitioner was placed on concurrent terms of five years of sex offender

probation, consecutive to his prison sentence. On direct appeal, Petitioner cited to the

Second District Court of Appeal’s then-recent opinion in Shelley v. State, 134 So. 3d 1138,

1141 (Fla. 2d DCA 2014), which held that convictions for traveling to meet a minor to

engage in unlawful sexual conduct after solicitation and for solicitation of a minor via the




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LAMBERT, J., concurring and concurring specially.                             5D16-2913


       In Shelley, our supreme court made clear that double jeopardy principles prohibit

separate convictions for solicitation under section 847.0135(3)(b) and traveling after

solicitation under section 847.0135(4)(b) when based upon the same conduct. 176 So.

3d at 919. Conversely, there is no double jeopardy violation for dual convictions of these

statutes when not based upon the same conduct. The difficulty in these cases is what

constitutes the “same conduct.”

       The clear case is when a defendant uses a computer one time to solicit sexual

activity with a minor, receives consent from the parent or the person believed to be the

parent, legal guardian, or custodian to engage in the unlawful sexual conduct with the

minor child, and thereafter travels to meet the minor for the sexual activity. However, the

fact patterns in the vast majority of these cases that reach the appellate courts are not

that direct. For example, in Shelley, the court wrote that “over the course of several days”

the defendant made arrangements via various computer services or devices to have sex

with the “mother” and the fictitious minor daughter, but “[t]he State relied upon the same

conduct to charge both offenses.” Id. at 916–17.

       The Legislature has specifically provided under section 847.0135(3) that each

separate use of a computer service or device to solicit may be charged as a separate

offense. Much of the difficulty in determining whether the dual convictions were based

upon the same conduct could be avoided by the State simply charging multiple counts of

solicitation, if supported by the evidence, along with one count of traveling. Thereafter, if

the case proceeded to trial, appropriate jury instructions would be provided to the jury

explaining to them that there must be at least two separate and distinct acts of solicitation

                                             8
                     The State charged Shelley with a single violation of
              section 847.0135(3)(b), which prohibits the use of computer
              services or devices to solicit the consent of a parent or a
              person believed to be the parent, legal guardian, or custodian
              of a child to engage in unlawful sexual conduct with the child.
              In addition, the State charged Shelley with a single violation
              of section 847.0135(4)(b), which prohibits traveling to meet a
              minor to engage in unlawful sexual conduct after using
              computer services or devices to make a prohibited solicitation.
              The State relied upon the same conduct to charge both
              offenses.

                      Shelley moved to dismiss, arguing, among other
              things, that dual convictions for solicitation and traveling after
              solicitation based upon the same conduct violate the
              constitutional prohibition against double jeopardy because
              solicitation is a lesser-included offense of traveling after
              solicitation. The trial court denied Shelley’s motion, and
              Shelley pled guilty, but reserved his right to appeal the denial
              of his motion to dismiss. . . .

                      On appeal, the Second District held that Shelley’s
              convictions for solicitation and traveling after solicitation
              impermissibly place him in double jeopardy because the
              Legislature has not explicitly stated its intent to allow separate
              convictions for these offenses based upon the same conduct
              and because the solicitation offense is subsumed by the
              traveling offense.      Shelley, 134 So. 3d at 1141–42.
              Accordingly, the Second District vacated Shelley’s conviction
              and sentence for the lesser offense of solicitation. Id. at 1142.
              In so holding, the Second District certified conflict with the
              First District’s decision in Murphy on the issue of the
              Legislature’s intent. Id.

176 So. 3d at 916–17 (footnote omitted).

       The Florida Supreme Court approved the Second District’s decision in Shelley and

disapproved the First District’s decision in Murphy on the issue of the Legislature’s intent.

Id. at 916. The court held that based on the plain language of section 847.0135, the

Legislature had not explicitly stated its intent to authorize separate convictions and

punishments for conduct that constituted both solicitation under subsection (3)(b) and



                                              4
traveling after solicitation under subsection (4)(b). Id. at 919. The court concluded that

because the statutory elements of solicitation are entirely subsumed by the statutory

elements of traveling after solicitation, double jeopardy principles prohibit separate

convictions based upon the same conduct; thus, Shelley’s solicitation conviction and

sentence as the lesser of the two offenses was properly vacated. Id.

       Based upon Shelley and our court’s post-Shelley opinions in Stapler v. State, 190

So. 3d 162 (Fla. 5th DCA 2016), and Pamblanco v. State, 199 So. 3d 507 (Fla. 5th DCA

2016), Petitioner now petitions to have his conviction and sentence for solicitation

vacated.1 In Stapler, the defendant was charged with soliciting on or between February

7, 2012, and February 9, 2012, and with traveling after solicitation on February 9, 2012.2

Stapler entered an open, no-contest plea to both charges, thus preserving his right to

appeal any double-jeopardy violation. 190 So. 3d at 164. The only issue that we

addressed was “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.” Id. The State argued that the evidence established

multiple violations sufficient to justify affirming the convictions for solicitation and traveling

after solicitation. Id.




       1  In his petition, Petitioner also raised seven separate grounds of ineffective
assistance of appellate counsel that we initially concluded, and on motion for rehearing
still conclude, to be meritless.

       2 The specific details of the charges asserted against Stapler are evidenced by the
information filed and contained in the record of Stapler’s appeal. “This court can take
judicial notice of its own records.” Scheffer v. State, 893 So. 2d 698, 699 (Fla. 5th DCA
2005) (citing Sinclair v. State, 853 So. 2d 551, 552 n.2 (Fla. 1st DCA 2003); Fyler v. State,
852 So. 2d 442, 443 (Fla. 5th DCA 2003)).



                                                5
       In reversing Stapler’s solicitation conviction, we first acknowledged that while the

State can convict a defendant on multiple counts of solicitation where multiple counts are

alleged and established, we would not deny a double jeopardy claim “based on

uncharged conduct simply because it could have been charged.” Id. at 164–65 (quoting

Shelley, 134 So. 3d at 1141–42). We held that “[b]ecause Stapler was charged with

single counts of solicitation and traveling based on the same conduct . . . [his] dual

convictions under both subsections (3)(b) and (4)(b) violate his double-jeopardy rights.”

Id. at 165 (citing Agama v. State, 181 So. 3d 571, 571 (Fla. 2d DCA 2015)).

       Similarly, in Pamblanco, the defendant was charged with unlawful solicitation and

travel that took place over several days in February 2010. 199 So. 3d at 507. We noted

that while “the State could have charged [Pamblanco] with . . . multiple offenses occurring

on multiple occasions,” the State charged him with “one count of solicitation and one

count of traveling based on the same conduct.” Id.        Relying on Stapler, we found that

“the dual convictions and sentences violated [Pamblanco’s] right to be free from double

jeopardy” and reversed his solicitation conviction. Id.

       Here, the State charged Petitioner with committing one count of solicitation

occurring on or between January 7 and January 10, 2012, despite the trial evidence

establishing that the State first placed the Craigslist ad on the evening of January 8 and

that Petitioner was arrested following his commission of the traveling offense on January

9. We see no material distinction between the facts and allegations of this case and those

in Stapler and Pamblanco. Petitioner raised this issue on his direct appeal and our

affirmance without opinion precluded him from seeking relief in the Florida Supreme Court

while Shelley was pending before that court. See Jenkins v. State, 385 So. 2d 1356,




                                             6
1359 (Fla. 1980) (holding that the Florida Supreme Court lacks jurisdiction to review per

curiam decisions of district courts of appeal issued without opinion). Therefore, we

conclude that this is one of those rare cases in which we should reconsider our earlier

ruling on direct appeal. See Dickerson v. State, 204 So. 3d 544, 545 (Fla. 5th DCA 2016)

(“[A]n appellate court has the authority to correct a ‘manifest injustice’ by way of habeas

corpus proceedings.”) (citing Harris v. State, 12 So. 3d 764, 765 (Fla. 3d DCA 2008)).

Accordingly, we vacate Petitioner’s conviction and sentence for solicitation and remand

for resentencing based upon a corrected criminal punishment code scoresheet. See

Pamblanco, 199 So. 3d at 507; Lashley v. State, 194 So. 3d 1084, 1085 (Fla. 1st DCA

2016).

         PETITION FOR WRIT OF HABEAS CORPUS GRANTED, IN PART.

CONVICTION AND SENTENCE FOR SOLICITATION VACATED.



COHEN, C.J., and WALLIS, J., concur.
LAMBERT, J., concurs and concurs specially, with opinion.




                                            7
LAMBERT, J., concurring and concurring specially.                             5D16-2913


       In Shelley, our supreme court made clear that double jeopardy principles prohibit

separate convictions for solicitation under section 847.0135(3)(b) and traveling after

solicitation under section 847.0135(4)(b) when based upon the same conduct. 176 So.

3d at 919. Conversely, there is no double jeopardy violation for dual convictions of these

statutes when not based upon the same conduct. The difficulty in these cases is what

constitutes the “same conduct.”

       The clear case is when a defendant uses a computer one time to solicit sexual

activity with a minor, receives consent from the parent or the person believed to be the

parent, legal guardian, or custodian to engage in the unlawful sexual conduct with the

minor child, and thereafter travels to meet the minor for the sexual activity. However, the

fact patterns in the vast majority of these cases that reach the appellate courts are not

that direct. For example, in Shelley, the court wrote that “over the course of several days”

the defendant made arrangements via various computer services or devices to have sex

with the “mother” and the fictitious minor daughter, but “[t]he State relied upon the same

conduct to charge both offenses.” Id. at 916–17.

       The Legislature has specifically provided under section 847.0135(3) that each

separate use of a computer service or device to solicit may be charged as a separate

offense. Much of the difficulty in determining whether the dual convictions were based

upon the same conduct could be avoided by the State simply charging multiple counts of

solicitation, if supported by the evidence, along with one count of traveling. Thereafter, if

the case proceeded to trial, appropriate jury instructions would be provided to the jury

explaining to them that there must be at least two separate and distinct acts of solicitation

                                             8
to hold the defendant accountable on both a traveling violation and solicitation violation,

and the verdict forms would allow the jury to separately determine whether the State has

established, beyond a reasonable doubt, each of the solicitation counts. See Lee v. State,

223 So. 3d 342, 375–76 (Fla. 1st DCA 2017) (Makar, J., concurring in part, dissenting in

part). At that point, it becomes clearer for the court and the parties whether a potential

double jeopardy violation exists and, where appropriate, can be avoided by simply

vacating the one solicitation conviction subsumed in the traveling conviction prior to

sentencing. Cf. Barnett v. State, 159 So. 3d 922, 923–25 (Fla. 5th DCA 2015) (affirming

a defendant’s solicitation conviction charged as being committed on October 24, 2012,

but vacating an October 26, 2012 solicitation conviction charged as occurring on the same

date as the defendant’s traveling after solicitation offense); Hartley v. State, 129 So. 3d

486, 488–91 (Fla. 4th DCA 2014) (affirming separate solicitation convictions charged as

occurring on November 2, 2011, and November 3, 2011, but vacating a solicitation

conviction charged as occurring on November 4, 2011, where the defendant was also

charged and convicted of traveling on November 4, 2011, to meet a minor to commit an

unlawful sex act following solicitation).

       With this observation, I concur in the majority opinion.




                                             9
