Thomas v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BRIAN THOMAS, )
)
Appellant, )
)
v. ) Case No. 2D14-1986
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed November 16, 2016.
Appeal from the Circuit Court for Manatee
County; Edward Nicholas, Judge.
Joseph C. Bodiford of Bodiford Law, P.A.,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa; and
Johnny T. Salgado, Assistant Attorney
General, Tampa (substituted as counsel of
record), for Appellee.
LUCAS, Judge.
Following a jury trial, Brian Thomas was convicted and sentenced on one
count of traveling to meet a person to solicit a child to commit a sexual act under section
847.0135(4)(b), Florida Statutes (2012) (count I), one count of using a computer to
solicit a person to commit a sexual act on a child in violation of section 847.0135(3)(b)
(2012) (count II), and one count of attempted lewd or lascivious battery under sections
800.04(a) and 777.04 (2012) (count III). He raises several issues in his appeal, but we
find merit in only one, the denial of his motion for arrest of judgment and motion to
dismiss count II of the information.
Both counts I and II stemmed from the same course of conduct on the part
of Mr. Thomas, who, by his own admission, was searching for a sexual liaison on
Craigslist when he happened across a posting from what turned out to be an
undercover Florida Department of Law Enforcement Agent posing as the online mother
to fictional, minor-aged children. The operative information underlying Mr. Thomas'
charges and criminal proceedings alleged, in count II, that Mr. Thomas, "on or about
March 19, 2013, through March 22, 2013," used a computer online service to solicit the
undercover agent for the purpose of engaging in unlawful sexual activity with minor
children. Count I of the operative information alleged that Mr. Thomas then traveled on
March 22, 2013, in order to solicit the agent for the purpose of engaging in unlawful
sexual conduct with the children. The State does not describe any temporal break
between Mr. Thomas' sustained and increasingly lurid text messages and online
communications soliciting the FDLE agent from March 19 through March 22 and his
driving to meet the agent at an agreed upon location on March 22.
As such, Mr. Thomas is correct that his convictions for traveling to solicit
under count I and solicitation under count II, under these facts, encompassed the same
criminal conduct and violated the constitutional prohibition against double jeopardy.
See State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015) ("Based on the plain language of
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section 847.0135, we hold that the [l]egislature has not explicitly stated its intent to
authorize separate convictions and punishments for conduct that constitutes both
solicitation under subsection (3)(b) and traveling after solicitation under subsection
(4)(b)."); Mahar v. State, 190 So. 3d 1123, 1125 (Fla. 2d DCA 2016) ("[T]he supreme
court in Shelley considered and rejected the State's argument that the legislature
intended to allow for multiple convictions that treat each instance of online
communication as a separate offense, thereby also allowing for a conviction for both the
communications and traveling for the same conduct."); Meythaler v. State, 175 So. 3d
918, 920 (Fla. 2d DCA 2015) ("Accordingly, Mr. Meythaler's convictions and sentences
for solicitation and traveling after solicitation based upon the same conduct
impermissibly place him in double jeopardy."). We must, therefore, reverse Mr.
Thomas' conviction and sentence for solicitation under count II and remand for the
circuit court to vacate the conviction and sentence as to that count.
Affirmed in part; reversed in part; remanded with instructions.
NORTHCUTT and SILBERMAN, JJ., Concur.
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