IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DAVID LEON LASHLEY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-277
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed June 28, 2016.
An appeal from the Circuit Court for Alachua County.
Robert Groeb, Judge.
Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
David Leon Lashley, Appellant, was convicted by a jury of improper use of
a computer service to solicit a minor contrary to section 847.0135(3)(a), Florida
Statutes (2011); unlawful use of a two-way communications device to further the
commission of a felony contrary to section 934.215; traveling to meet a person
believed to be a minor after using a computer device capable of electronic data
storage to solicit unlawful sexual conduct contrary to section 847.0135(4)(a); and
failure to appear, contrary to section 843.15(1)(a). Appellant challenges his
convictions for solicitation, unlawful use of a two-way communications device,
and traveling after solicitation. For the reasons that follow, we affirm Appellant’s
conviction for traveling after solicitation, reverse his convictions for improper use
of a computer to solicit and unlawful use of a two-way communications device,
and remand for resentencing based upon a corrected criminal punishment code
scoresheet.
In State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015), the Florida Supreme
Court held that double jeopardy principles prohibit separate convictions for
solicitation under section 847.0135(3)(b), Florida Statutes (2011), and traveling to
meet a minor after solicitation pursuant to section 847.0135(4)(b) if the charges
were based on the same conduct. The State properly concedes that the reasoning in
Shelley applies to this case, even though this case involves violations of sections
847.0135(3)(a) and (4)(a). Accordingly, we reverse and remand to the trial court
with directions to vacate Appellant’s conviction and sentence for the lesser
included offense of using a computer service to solicit a child to engage in sexual
conduct in violation of section 847.0135(3)(a).
2
Appellant also contends that if either his conviction for solicitation or
traveling after solicitation withstands our review, then his conviction for unlawful
use of a two-way communications device should be vacated to prevent a violation
of double jeopardy. We affirm Appellant’s conviction for traveling to meet a
person believed to be a child after using a computer device capable of electronic
data storage to solicit unlawful sexual conduct, but agree with Appellant that his
conviction for unlawful use of a two-way communications device must be vacated
pursuant to our decision in Hamilton v. State, 163 So. 3d 1277, 1279 (Fla. 1st DCA
2015) (holding that convictions arising out of the same criminal episode for
traveling to meet a minor under section 847.0135(4), Florida Statutes (2013), and
unlawful use of a two-way communications device under section 934.215, Florida
Statutes (2013), violate double jeopardy). See also Holt v. State, 173 So. 3d 1079
(Fla. 5th DCA 2015).
AFFIRMED in part, REVERSED in part, and REMANDED.
RAY, BILBREY, and JAY, JJ., CONCUR.
3