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
2
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