FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D15-1299
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TIMOTHY CARLOS COFFEY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.
May 2, 2019
ON REMAND FROM THE FLORIDA SUPREME COURT
PER CURIAM.
The appellant, Timothy Coffey, was charged by amended
information with one count of using a computer to facilitate or
solicit a parent to consent to the sexual conduct of a child, in
violation of section 847.0135(3)(b), Florida Statutes (2013) (Count
1); one count of unlawful use of a two-way communications device,
a cellular phone, to facilitate the commission of a felony, traveling
to engage in sexual conduct with a minor, in violation of section
934.215, Florida Statutes (2013) (Count 2); and one count of
traveling to meet a minor to engage in sexual conduct with consent
by a parent, in violation of section 847.0135(4)(b), Florida Statutes
(2013) (Count 3). Each crime was alleged to have been committed
“on or about November 15, 2013.” He was convicted on all counts.
The appellant raised four issues on appeal. In Issue I, he
argued his dual convictions in Counts 1 and 3 violated double
jeopardy. In Issue II, he argued his dual convictions in Counts 2
and 3 violated double jeopardy. In Issue III, he challenged the
denial of a pre-trial motion to dismiss based on subjective and
objective entrapment. In Issue IV, he argued the trial court erred
by excluding certain trial testimony. This Court accepted the
State’s concession of error in Issue II and vacated the appellant’s
conviction in Count 2. We affirmed all other issues on appeal.
In Issue I, we affirmed his dual convictions in Counts 1 and 3
under Lee v. State,
223 So. 3d 342 (Fla. 1st DCA 2017). In 2018,
the Supreme Court quashed our opinion in Lee and held that the
reviewing court should only consider the charging document to
determine whether multiple convictions for solicitation, unlawful
use of a two-way communications device, and traveling were based
upon the same conduct for purposes of double jeopardy. Lee v.
State,
258 So. 3d 1297 (Fla. 2018) (Lee II). Applying Lee II to Issue
I in this case, we must also vacate the appellant’s conviction in
Count 1 as that count is subsumed within Count 3. Accordingly,
the appellant’s convictions in Counts 1 and 2 are VACATED. The
appellant’s conviction in Count 3 is AFFIRMED.
LEWIS, ROBERTS, and RAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender; Joanna Aurica Mauer and Glen P.
Gifford, Assistant Public Defenders, Tallahassee, for Appellant.
Ashley Moody, Attorney General; Matthew Pavese and Michael L.
Schaub, Assistant Attorneys General, Tallahassee, for Appellee.
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