Sang Youn Kim 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
SANG YOUN KIM, )
)
Appellant, )
)
v. ) Case No. 2D13-6244
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________ )
Opinion filed January 7, 2015.
Appeal from the Circuit Court for Manatee
County; John F. Lakin, Judge.
Howard L. Dimmig, II, Public Defender, and
Richard P. Albertine, Jr., Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa, for
Appellee.
KHOUZAM, Judge.
Sang Youn Kim pleaded no contest to traveling to seduce/solicit/entice a
child to commit a sex act and use of a computer to seduce/solicit/entice a child to
commit a sex act, reserving the right to appeal the denial of his motion to dismiss on
double jeopardy grounds. Because these dual convictions violate the prohibition
against double jeopardy, we affirm in part and vacate in part.
The record shows that on September 15, 2012, Kim responded to a
Craigslist ad placed by an undercover officer. The officer advised Kim—who was forty-
six years old at the time—that he was communicating with a fourteen-year-old girl. The
next day (September 16), Kim continued communicating with the fictitious girl via email,
indicating that he wanted to have sex with her. He arranged to meet at a location in
Manatee County that he believed was the girl's home, traveled from his Tampa home to
the Manatee County location, and was taken into custody upon his arrival.
Kim was charged with traveling to seduce/solicit/entice a child to commit a
sex act under section 847.0135(4)(a), Florida Statutes (2012), and use of a computer to
seduce/solicit/entice a child to commit a sex act under section 847.0135(3)(a). Both
offenses were alleged to have occurred on September 16, 2012. He moved to dismiss
on double jeopardy grounds. The trial court denied the motion, determining that the
dual charges did not violate double jeopardy principles.
But in the recent opinion Shelley v. State, this court addressed a nearly
identical issue, holding as follows:
In essence, the traveling offense [under section
847.0135(4)(b)] proscribes traveling to meet a child to
engage in unlawful sexual contact after having solicited the
child's parent, legal guardian, or custodian or a person
believed to be such. Thus, the soliciting offense [under
section 847.0135(3)(b)] does not contain an element that is
not found in the traveling offense. See [Hartley v. State, 129
So. 3d 486, 491 (Fla. 4th DCA 2014)]; [Pinder v. State, 128
So. 3d 141, 143 (Fla. 5th DCA 2013)]. As a result, dual
convictions for soliciting and traveling in the course of one
criminal transaction or episode violate the prohibition against
double jeopardy. Id.-2-
134 So. 3d 1138, 1141 (Fla. 2d DCA), review granted, 147 So. 3d 527 (Fla. 2014). This
analysis applies equally to the charges in question here, soliciting under section
847.0135(3)(a) and traveling under section 847.0135(4)(a), which run parallel to the
statutory sections addressed in Shelley.1 Thus, "the convictions for both soliciting and
1
The statutory sections appear in their entirety as follows:
(3) Certain uses of computer services or devices
prohibited.--Any person who knowingly uses a computer
online service, Internet service, local bulletin board service,
or any other device capable of electronic data storage or
transmission to:
(a) Seduce, solicit, lure, or entice, or attempt to seduce,
solicit, lure, or entice, a child or another person believed by
the person to be a child, to commit any illegal act described
in chapter 794, chapter 800, or chapter 827, or to otherwise
engage in any unlawful sexual conduct with a child or with
another person believed by the person to be a child; or
(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice
a parent, legal guardian, or custodian of a child or a person
believed to be a parent, legal guardian, or custodian of a
child to consent to the participation of such child in any act
described in chapter 794, chapter 800, or chapter 827, or to
otherwise engage in any sexual conduct,
commits a felony of the third degree, punishable as provided
in s. 775.082, s. 775.083, or s. 775.084. Any person who, in
violating this subsection, misrepresents his or her age,
commits a felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084. Each
separate use of a computer online service, Internet service,
local bulletin board service, or any other device capable of
electronic data storage or transmission wherein an offense
described in this section is committed may be charged as a
separate offense.
(4) Traveling to meet a minor.--Any person who travels any
distance either within this state, to this state, or from this
state by any means, who attempts to do so, or who causes
another to do so or to attempt to do so for the purpose of
engaging in any illegal act described in chapter 794, chapter
800, or chapter 827, or to otherwise engage in other unlawful
-3-
traveling as charged in this case violate the prohibition against double jeopardy because
the soliciting offense is subsumed by the traveling offense." Shelley, 134 So. 3d at
1142. We affirm the conviction and sentence for traveling and vacate the conviction
and sentence for soliciting. See id. We also certify conflict with the First District's
decision in State v. Murphy, 124 So. 3d 323 (Fla. 1st DCA 2013), as this court did in
Shelley. See id.Affirmed in part and vacated in part; conflict certified.
LaROSE and SLEET, JJ., Concur.
sexual conduct with a child or with another person believed
by the person to be a child after using a computer online
service, Internet service, local bulletin board service, or any
other device capable of electronic data storage or
transmission to:
(a) Seduce, solicit, lure, or entice or attempt to seduce,
solicit, lure, or entice a child or another person believed by
the person to be a child, to engage in any illegal act
described in chapter 794, chapter 800, or chapter 827, or to
otherwise engage in other unlawful sexual conduct with a
child; or
(b) Solicit, lure, or entice or attempt to solicit, lure, or entice a
parent, legal guardian, or custodian of a child or a person
believed to be a parent, legal guardian, or custodian of a
child to consent to the participation of such child in any act
described in chapter 794, chapter 800, or chapter 827, or to
otherwise engage in any sexual conduct,
commits a felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
§ 847.0135.
-4-