NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DERRELL A. RICHARDSON, )
)
Appellant, )
)
v. ) Case No. 2D17-3814
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed June 21, 2019.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Manatee County; Susan Maulucci, Judge.
Derrell A. Richardson, pro se.
Ashley Moody, Attorney General,
Tallahassee, and Jonathan Hurley,
Assistant Attorney General, Tampa,
for Appellee.
SALARIO, Judge.
Derrell Richardson appeals from an order summarily denying his six-
ground motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.
We affirm the summary denial of claims one through five without comment. We reverse
the summary denial of ground six—which alleged that Mr. Richardson's dual convictions
and sentences for soliciting a child and traveling to meet a child violated double
jeopardy—and remand for further proceedings.
The State charged Mr. Richardson with using a computer to seduce,
solicit, lure, or entice a minor to commit a sex act "on one or more occasions between"
September 14, 2012, and September 15, 2012, and with traveling to meet a minor after
using a computer to seduce, solicit, lure, or entice a minor to commit a sex act on
September 15, 2012. § 847.0135(3)(a), (4)(a), Fla. Stat. (2012). A jury found Mr.
Richardson guilty of both crimes, and the trial court sentenced him to concurrent terms
of five years' imprisonment and seven years' imprisonment followed by three years' sex
offender probation. Mr. Richardson appealed from his convictions and sentences. We
affirmed without a written opinion. Richardson v. State,
177 So. 3d 261 (Fla. 2d DCA
2015) (table decision).
In ground six of his postconviction motion, Mr. Richardson asserted that
his convictions and sentences for the two offenses violate the prohibition against double
jeopardy, as explained by the supreme court in State v. Shelley,
176 So. 3d 914 (Fla.
2015). Rule 3.850 is an appropriate vehicle for such a claim. See Wilson v. State,
693
So. 2d 616, 617 n.2 (Fla. 2d DCA 1997) ("Double jeopardy claims are appropriately
brought under rule 3.850."); see also Rodriguez v. State, 162 So. 3d 1162, 1164-65
(Fla. 5th DCA 2015) (reversing the summary denial of a rule 3.850 claim that asserted
ineffective assistance of counsel in regard to a Shelley-related double-jeopardy issue).
In Shelley, the supreme court held that double jeopardy prohibits dual convictions for
traveling and soliciting where the two offenses arise out of the same conduct.
176 So.
3d at 917-20. The issue with which the postconviction court grappled in summarily
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denying ground six of Mr. Richardson's motion was whether the two offenses of which
he was convicted—which apparently occurred over the course of two days and involved
some temporal separation—arose from the same conduct such that they implicated the
holding in Shelley.
The postconviction court held that the two offenses did not arise from the
same conduct. Relying extensively upon the First District's decision in Lee v. State,
223
So. 3d 342, 348 (Fla. 1st DCA 2017) (en banc), quashed,
258 So. 3d 1297 (Fla. 2018),
the court held that it was required to apply a three-part test to determine whether the
dual convictions violated double jeopardy, considering (1) whether the offenses
occurred during the same criminal episode, if so, (2) whether the convictions are
predicated on discrete acts, and if not, (3) whether the separate charges pass the tests
of Blockburger v. United States,
284 U.S. 299 (1932), and section 775.021, Florida
Statutes. See
Lee, 223 So. 3d at 348. The postconviction court explained that the first
part of the test required it to consider whether there were multiple victims, whether the
offenses occurred in multiple offenses, and whether there was a temporal break
separating the offenses, and the second part of the test required consideration of any
temporal break, intervening acts, changes in location, and formations of new criminal
intent. Applying those factors to the evidence adduced at Mr. Richardson's trial, the
postconviction court held that the offenses did not occur during the same criminal
episode and, at all events, that they were predicated on discrete acts.
After the postconviction court's decision in this case, the supreme court
quashed the First District's decision in Lee. Lee v. State,
258 So. 3d 1297, 1304 (Fla.
2018). The supreme court held that "to determine whether multiple convictions of
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solicitation of a minor . . . and traveling after solicitation of a minor are based upon the
same conduct for purposes of double jeopardy, the reviewing court should consider only
the charging document—not the entire evidentiary record."
Id. at 1304. It explained
that "[a] reviewing court's ability to find evidence in the record to support multiple
convictions is insufficient to defeat a double jeopardy claim when nothing in the
charging document suggests that the convictions were based on separate conduct."1
Id. at 1303-04. The supreme court's decision in Lee makes clear that the analysis the
postconviction court applied in summarily denying ground six of Mr. Richardson's rule
3.850 motion was legally inaccurate.
For these reasons, we reverse the postconviction court's order to the
extent it summarily denied ground six of Mr. Richardson's motion and remand for it to
reconsider that ground.2 We affirm the order in all other respects.
1Thisholding is consistent with our decision in Mahar v. State,
190 So. 3d
1123, 1125 (Fla. 2d DCA 2016), in which we rejected the argument that a temporal
break between the conversations forming the basis of a soliciting charge saved the
defendant's convictions for solicitation and traveling from a double jeopardy challenge
when the State charged only "one count of solicitation based on those multiday
communications."
Id. at 1125 (citing Shelley,
176 So. 3d at 916).
2Mr. Richardson argued the double jeopardy issue in his direct appeal,
which raises the prospect that our earlier decision represents the law of the case as to
this issue. See Gaskins v. State,
502 So. 2d 1344, 1346 (Fla. 2d DCA 1987) ("A per
curiam affirmance establishes the law of the case."). We leave it to the postconviction
court and the parties on remand to argue and determine, if necessary, whether the law
of the case doctrine applies. See State v. Akins, 69 So. 3d 261, 268 (Fla. 2011)
(holding that an illegal sentence that violates the prohibitions against double jeopardy is
an exceptional circumstance for which an appellate court can reconsider a point of law
previously decided); Fla. Dep't of Transp. v. Juliano,
801 So. 2d 101, 105-06 (Fla. 2001)
(holding that an intervening legal decision may establish an exception to the law of the
case doctrine); Smith v. State,
214 So. 3d 703, 704 (Fla. 1st DCA 2016) (considering
whether to revisit the law of the case on a double jeopardy problem in light of Shelley);
Lago v. State,
975 So. 2d 613, 614 (Fla. 3d DCA 2008) (holding that a sentence that "is
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Affirmed in part, reversed in part, and remanded.
SILBERMAN and MORRIS, JJ., Concur.
violative of the double jeopardy clause, and thus 'patently illegal,' " is cause to avoid
application of the law of the case).
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