TIMOTHY M. ANDERSON, JR. v. State of Florida , 2016 Fla. App. LEXIS 6434 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
TIMOTHY M. ANDERSON, JR., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-207
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed April 27, 2016.
An appeal from the Circuit Court for Leon County.
James O. Shelfer, Judge.
Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant, Timothy M. Anderson, appeals his dual convictions for using a
computer or other device to solicit consent from a person believed to be the custodian
of a person believed to be a minor to the minor’s participation in sexual conduct, in
violation of section 847.0135(3)(b), Florida Statutes (2011) (“solicitation”), and
traveling to meet a person believed to be a minor after using a computer or other
device to solicit consent by a person believed to be the purported minor’s custodian,
in violation of section 847.0135(4)(b) (“traveling”). Because we agree that under
the facts of this case, the solicitation offense was subsumed within the traveling
offense, we vacate Anderson’s conviction and sentence for solicitation.
The Florida Supreme Court recently examined the precise subsections at issue
in this case, and held that when the State relies upon the same conduct to support
solicitation and traveling charges, convictions for both will violate the prohibition
against double jeopardy. State v. Shelley, 176 So. 3d 914 (Fla. 2015). The court
determined that “the statutory elements of solicitation are entirely subsumed by the
elements of traveling,” and the legislature has not explicitly stated an intent to
authorize separate punishments for the two offenses when they are based on the same
underlying conduct. Id. at 919.
We observe that where multiple counts of solicitation are alleged, the
legislature has expressly authorized charging each solicitation as a separate offense.
See § 847.0135(3)(b), Fla. Stat. Consequently, where the State charges the
defendant with multiple counts of solicitation and also charges the defendant with
traveling, so long as different conduct is alleged with regard to the solicitation and
traveling charges, dual convictions will not violate the defendant’s double jeopardy
rights. See Meythaler v. State, 175 So. 3d 918, 919 (Fla. 2d DCA 2015) (vacating
conviction and sentence for solicitation where information alleged only single counts
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of solicitation and traveling based on the same conduct, but noting that if the State
had amended the information to allege additional communications that occurred,
these counts would have survived).
Here, however, the conduct involved a single solicitation. The State charged
Anderson with single counts of solicitation and traveling based on the same conduct.
Accordingly, and as properly conceded by the State, we are constrained to affirm the
conviction and sentence for traveling and vacate the conviction and sentence for
solicitation. See Shelley, 176 So. 3d at 919; See also Johnston v. State, 41 Fla. L.
Weekly D499 (Fla. 1st DCA Feb. 26, 2016). We reject Anderson’s remaining
arguments without comment.
AFFIRMED IN PART AND VACATED IN PART.
ROWE, RAY, and SWANSON, JJ., CONCUR.
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