         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 F. HONAKER,

              Appellant,

 v.                                                         Case No. 5D15-4156

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed August 19, 2016

3.850 Appeal from the Circuit Court
for Sumter County,
William H. Hallman, III, Judge.

David F. Honaker, Wewahitchka, pro se.

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

WALLIS, J.,

      David F. Honaker ("Appellant") pro se appeals the denial of his Florida Rule of

Criminal Procedure 3.850 motion for postconviction relief. Appellant argues, and we

agree, that his dual convictions for use of a computer to solicit the parent of a child to

consent to sexual activity with the child, in violation of section 847.0135(3)(b), Florida

Statutes (2012) (solicitation), and traveling to meet a minor to engage in unlawful sexual

activity, in violation of section 847.0135(4)(b), Florida Statutes (2012) (traveling after
solicitation), violate the prohibition against double jeopardy. We also find that Appellant's

dual convictions for unlawful use of a two-way communications device, in violation of

section 934.215, Florida Statutes (2012), and traveling after solicitation violate double

jeopardy. We reverse and remand for the trial court to vacate Appellant's convictions and

sentences for unlawful use of a two-way communications device and solicitation, and for

resentencing. We affirm in all other respects.

       On February 21, 2012, law enforcement posted an ad in the casual encounters

section of Craigslist, posing as a mother seeking an "open minded guy for fun times with

family." Appellant responded to the ad, inquiring as to whether the poster meant that she

wished to engage in sexual activity with her daughter and another man. The officer

responded affirmatively, stating that her daughter was "14 and wanting to learn about

sex." Appellant indicated that he was interested, and proceeded to engage in

inappropriate communications, via text message and email, over the next four days. On

February 25, Appellant traveled to an address provided by law enforcement to engage in

sexual activity with the mother and minor child, and law enforcement arrested him upon

arrival.

       The State charged Appellant with one count of each of the following: unlawful use

of a two-way communications device; solicitation; and traveling after solicitation. The

information indicates that all three counts stem from Appellant's actions on February 25,

2012. The case proceeded to trial, and the jury found Appellant guilty on all charges. The

trial court sentenced Appellant to three concurrent terms of 60 months' incarceration.1 On



       1
       This court per curiam affirmed Appellant's direct appeal of his convictions and
sentences. Honaker v. State, 129 So. 3d 1081 (Fla. 5th DCA 2013).



                                             2
January 5, 2015, Appellant moved for postconviction relief, alleging his dual convictions

for solicitation and traveling after solicitation violated double jeopardy. The trial court

denied the motion, and we subsequently granted a belated appeal.

       Our court previously addressed the argument that dual convictions for solicitation

and traveling after solicitation violate the prohibition against double jeopardy. See Pinder

v. State, 128 So. 3d 141 (Fla. 5th DCA 2013). As we explained in Pinder,

                      There is no doubt that subsection (4)(b) contains a
              "travel" element that is not found in subsection (3)(b).
              However, we agree with Pinder that subsection (3)(b) does
              not contain an element that is not found in subsection (4)(b).
              Thus, if a defendant solicited unlawful sexual activity with a
              minor through a single use of a computer device prior to
              traveling to meet the minor for unlawful sexual activity, double
              jeopardy principles would preclude convictions under both
              subsections.
Id. at 143 (footnote omitted) (citing § 775.021(4)(b)3., Fla. Stat. (2011)). Nonetheless, we

ultimately determined that no double jeopardy violation occurred because the defendant

engaged in multiple acts of solicitation over an eight-day period before traveling to meet

the minor child. Id. at 144.

       The Florida Supreme Court has since clarified this issue. See State v. Shelley, 176

So. 3d 914 (Fla. 2015), reh'g denied (Oct. 9, 2015). The Court explained its holding as

follows:

                      Based on the plain language of section 847.0135, we
              hold that the Legislature has not explicitly stated its intent to
              authorize separate convictions and punishments for conduct
              that constitutes both solicitation under subsection (3)(b) and
              traveling after solicitation under subsection (4)(b). Moreover,
              because the statutory elements of solicitation are entirely
              subsumed by the statutory elements of traveling after
              solicitation, the offenses are the same for purposes of the
              Blockburger [v. United States, 284 U.S.299, 52 S.Ct. 180, 76
              L.Ed. 306 (1932)] same-elements test codified in section
              775.021(4), Florida Statutes. . . . Therefore, double jeopardy


                                             3
              principles prohibit separate convictions based upon the same
              conduct.

Id. at 919 (citation omitted). Following Shelley, our court has held that double jeopardy

prohibits dual convictions when a defendant is charged for "single counts of solicitation

and traveling based on the same conduct." Stapler v. State, 190 So. 3d 162, 165 (Fla. 5th

DCA 2016) (citing Agama v. State, 181 So. 3d 571, 571 (Fla. 2d DCA 2015)). When a

double jeopardy violation occurs, "the proper remedy is to vacate the solicitation

conviction because it is the lesser offense." Senger v. State, 41 Fla. L. Weekly D1259

(Fla. 5th DCA May 27, 2016) (citing Shelley, 176 So. 3d at 919). Similarly, multiple courts

have concluded that dual convictions for unlawful use of a two-way communications

device and traveling after solicitation violate the prohibition against double jeopardy when

based upon the same conduct. See, e.g., Holt v. State, 173 So. 3d 1079, 1081 (Fla. 5th

DCA 2015); Hamilton v. State, 163 So. 2d 1277, 1279 (Fla. 1st DCA 2015).

       We find that Appellant's convictions for unlawful use of a two-way communications

device, solicitation, and traveling after solicitation cannot all stand because, based on the

information, all three charges arose from the same conduct. See Shelley, 176 So. 3d at

919. Although Appellant did not raise a double jeopardy challenge to the dual convictions

for traveling and unlawful use of a two-way communications device, a double jeopardy

violation amounts to fundamental error, see Bailey v. State, 21 So. 3d 147, 149 (Fla. 5th

DCA 2009), and we may sua sponte address fundamental error apparent on the face of

the record, see Williams v. State, 280 So. 2d 518, 519 (Fla. 3d DCA 1973). Accordingly,

we reverse and remand for the trial court to vacate Appellant's convictions and sentences

for unlawful use of a two-way communications device and solicitation, the lesser offenses,

and for resentencing. We affirm in all other respects.



                                             4
     AFFIRMED in part; REVERSED in part; REMANDED with Instructions.



TORPY and LAMBERT, JJ., concur.




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