         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


DAVID KEITH GRIFFITH,

              Appellant,

 v.                                                     Case No. 5D15-4203

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed January 13, 2017

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

James S. Purdy, Public Defender, and
Kevin R. Holtz, Assistant Public Defender,
Daytona Beach, for Appellant.

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


ORFINGER, J.

       After entering a nolo contendere plea to a six-count information, David Griffith

appeals his judgments and sentences for one count of soliciting a child for unlawful sexual

conduct using computer services or devices (count 1), and one count of traveling to meet

a minor for illegal sexual conduct (count 2). Griffith contends that these two convictions
violate the prohibition against double jeopardy. This Court has jurisdiction. Fla. R. App.

P. 9.140(b)(2)(A)(ii)(e); Holubek v. State, 173 So. 3d 1114, 1116 (Fla. 5th DCA 2015)

(finding that defendant does not “specifically waive his right to appeal a double jeopardy

violation by generally waiving his right to appeal at the plea colloquy”).

       On Monday, February 3, 2014, Griffith responded via email to a Craigslist post

from a “Lonly clermont girl!” The Craigslist ad was placed by Detective Von McKenzie of

the Lake County Sheriff’s Office, posing as a thirteen-year-old girl named “Kelly.” Griffith

and “Kelly” communicated back and forth in an increasingly sexually explicit manner via

email from 5:51 p.m. until 10:45 p.m. By the time the email exchanges ended that day, a

tentative plan was made for “Kelly” and Griffith to meet for sexual conduct the following

Friday.

       The next day—Tuesday, February 4—at 5:14 a.m., Griffith emailed “Kelly” and

asked, among other things, what time she woke up, where she lived, and whether sixty

dollars would pay for a cell phone she wanted. At 9:00 a.m., “Kelly” responded and said

that sixty dollars would be “awesome.” Griffith replied, saying “So Friday, 60 dollars,

where and what time?” Griffith then described the sex acts he hoped they would engage

in when they met on Friday, February 7, 2014. Later that day, Griffith emailed “Kelly”

again and she responded, saying that she had gotten “the nerve up” to meet him and

asked him to come over that day. Griffith said he could meet her later that day by 6:00

p.m. More emails followed and, at 5:52 p.m., “Kelly” gave Griffith directions to her home

and said she would meet him at the apartment complex’s gate. When he arrived twenty

minutes later, he was arrested.




                                             2
       The State charged Griffith in a six-count information, but only counts 1 and 2 are

relevant to this appeal. In count 1, Griffith was charged with soliciting a child for unlawful

sexual conduct using computer services or devices in violation of section 847.0135(3),

Florida Statutes (2014), for his actions on February 3, 2014. In count 2, the State charged

Griffith with traveling to meet a minor for illegal sexual conduct in violation of section

847.0135(4)(a), Florida Statutes (2014), for his actions on February 4, 2014. Griffith

entered an open plea to all counts. During the plea colloquy, no mention was made about

double jeopardy and none occurred at sentencing.

       Generally, a defendant cannot raise a double jeopardy challenge for the first time

on appeal. An exception to this rule applies if: (1) the defendant’s plea is a general plea

and not a plea bargain, (2) the double jeopardy violation is apparent on the face of the

record, and (3) there is nothing in the record to indicate the defendant waived the double

jeopardy violation. Novaton v. State, 634 So. 2d 607, 609 (Fla. 1994). The burden of

proving that a double jeopardy violation is apparent from the record is on the appellant.

Edwards v. State, 139 So. 3d 981, 983 (Fla. 1st DCA 2014). This burden is similar to the

burden on a party bringing a motion to correct a sentence under Florida Rule of Criminal

Procedure 3.800, who must “demonstrate an entitlement to relief on the face of the

record.” Williams v. State, 957 So. 2d 600, 604 (Fla. 2007). In such motions, the movant

must

       affirmatively allege that the trial court records demonstrate on their face an
       entitlement to relief. A mere conclusory allegation that the answer lies in the
       record is insufficient to satisfy the pleading requirements of the rule. At a
       minimum, a rule 3.800 motion should state where in the record the
       information can be located and explain how the record demonstrates
       entitlement to relief.




                                              3
p.m. on February 4th.     At approximately 2:30 p.m. on February 4th, the detective

messaged Hughes and they discussed the previous night’s conversations and agreed to

meet soon at the specified location. Id. When Hughes arrived, he was arrested and

subsequently charged with one count of solicitation and one count of traveling. Id. at

1232. Relying on Shelley, we held that although the solicitation and traveling occurred

on two different days, the dual convictions violated double jeopardy because they were

based on the same conduct. Id. at 1233 (citing Shelley, 176 So. 3d at 917). We reasoned

that Hughes made concrete plans on February 3rd to meet the “girl” at a predetermined

location at a predetermined time and on February 4th, followed through as planned and

traveled to the designated meeting spot. There was no separate solicitation after the plan

was formulated.

      In analyzing this case, we examine whether the record demonstrates that the two

charges are based on the same conduct. We conclude Griffith’s actions on February 3rd

and February 4th were separate and distinct. Here, by the end of their conversation on

February 3rd, Griffith and “Kelly” had a tentative agreement to meet the following Friday.

That plan changed the next day when, after engaging in additional sexual exchanges,

they agreed to meet that afternoon. Thus, Griffith solicited “Kelly” on February 3rd to

meet a few days later, but solicited her again and traveled on February 4th. The fact that

he referenced the February 3rd conversation on February 4th does not transform the

actions into one continuous criminal act. Griffith’s actions were not part of the “same

conduct.”3



      3 During the seven-hour email break between February 3rd and 4th, Griffith also
had the opportunity to “pause, reflect and form a new criminal intent.” See Cabrera v.
State, 884 So. 2d 482, 484 (Fla. 5th DCA 2004). Griffith ended the conversation on


                                            6
February 4th. In contrast, Griffith argues that his solicitation began on February 3rd and

continued on February 4th until his arrest. Under the State’s theory, the February 3rd

solicitation was distinct from the February 4th solicitation that was a necessary

component of the traveling charge. Under Griffith’s theory, the February 3rd and 4th

solicitations were part of one continuous criminal action that resulted in traveling.

       Section 847.0135(3) prohibits the use of a computer to solicit a child, or a person

believed to be a child, for sex. Section 847.0135(4) makes it a crime to travel to meet a

child for sex after soliciting the child by computer. If based on the same conduct, the

charge of traveling after solicitation subsumes the solicitation charge, which is a lesser

included offense. State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015).2

       Appellate courts apply de novo review to double jeopardy claims based on

undisputed facts. Id. at 918 n.4     In Hughes v. State, 201 So. 3d 1230 (Fla. 5th DCA

2016), this Court concluded that dual convictions for traveling and solicitation violated

double jeopardy because they were based on the same conduct. In that case, an

undercover officer with the Lake County Sheriff’s Office posed as a fourteen-year-old girl

on Craigslist and had contact with the defendant, Joey Hughes. Id. at 1231. The sexually-

explicit conversations between them, which occurred via email and text, began on

February 3, 2014, and ended with Hughes’s arrest on February 4, 2014. By the end of

the February 3rd conversations, Hughes had confirmed the location where they would

meet the next afternoon. Hughes said he would message the “girl” at approximately 3:00




       2In Shelley, the Florida Supreme Court held that a double jeopardy violation
occurred because Shelley’s convictions of solicitation and traveling after solicitation were
based on the “same conduct.” 176 So. 3d at 918.



                                             5
p.m. on February 4th.     At approximately 2:30 p.m. on February 4th, the detective

messaged Hughes and they discussed the previous night’s conversations and agreed to

meet soon at the specified location. Id. When Hughes arrived, he was arrested and

subsequently charged with one count of solicitation and one count of traveling. Id. at

1232. Relying on Shelley, we held that although the solicitation and traveling occurred

on two different days, the dual convictions violated double jeopardy because they were

based on the same conduct. Id. at 1233 (citing Shelley, 176 So. 3d at 917). We reasoned

that Hughes made concrete plans on February 3rd to meet the “girl” at a predetermined

location at a predetermined time and on February 4th, followed through as planned and

traveled to the designated meeting spot. There was no separate solicitation after the plan

was formulated.

      In analyzing this case, we examine whether the record demonstrates that the two

charges are based on the same conduct. We conclude Griffith’s actions on February 3rd

and February 4th were separate and distinct. Here, by the end of their conversation on

February 3rd, Griffith and “Kelly” had a tentative agreement to meet the following Friday.

That plan changed the next day when, after engaging in additional sexual exchanges,

they agreed to meet that afternoon. Thus, Griffith solicited “Kelly” on February 3rd to

meet a few days later, but solicited her again and traveled on February 4th. The fact that

he referenced the February 3rd conversation on February 4th does not transform the

actions into one continuous criminal act. Griffith’s actions were not part of the “same

conduct.”3



      3 During the seven-hour email break between February 3rd and 4th, Griffith also
had the opportunity to “pause, reflect and form a new criminal intent.” See Cabrera v.
State, 884 So. 2d 482, 484 (Fla. 5th DCA 2004). Griffith ended the conversation on


                                            6
      Because we conclude that Griffith failed to point to evidence in the record

demonstrating a double jeopardy violation apparent from the record, we affirm the

judgments and sentences.

      AFFIRMED.


EDWARDS, J., concurs.
BERGER, J., concurs in result only.




Monday with a tentative plan to meet “Kelly” on Friday, waited seven hours, then
reinitiated contact with her and began to make plans to travel to meet her. He emailed
her twice before she woke up—once to ask where she lived and whether he should bring
sixty dollars when they met, and once to ask if she liked the nude pictures that he sent
her.


                                           7
