Sex Offender

Case Number: 1D14-1642

Judge: PER CURIAM

Court: IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

Plaintiff's Attorney:

Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General

Defendant's Attorney:

Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender

Description: In the early morning hours of October 13, 2013, Appellant, age 31, engaged
in sexually-explicit online communications with an undercover officer posing as a
14-year-old girl and her uncle. Among other things, Appellant told the officer
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posing as the girl that he was going to use his tongue on her “private area” and then
“slowly put [him]self inside [her] and . . . do that [until he’s] done and [she’s]
satisfied.” That evening, Appellant traveled to what he thought was the girl’s house
in order to have sex with her. Appellant was arrested upon his arrival at the house.
Appellant was charged with four offenses, only three of which are at issue in
this appeal: Count 1, traveling to meet a person believed to be a minor to engage in
sexual conduct in violation of section 847.0135(4), Florida Statutes (2013); Count
3, using a computer service to solicit a person believed to be a minor to engage in
sexual conduct in violation of section 847.0135(3)(a); and Count 4, using a computer
service to solicit a person believed to be a minor’s guardian to allow sexual conduct
with the minor in violation of section 847.0135(3)(b). Appellant pled guilty to Count
1 and no contest to Counts 3 and 4. He was adjudicated guilty on all counts and
sentenced to concurrent five-year prison terms, followed by five years of sexual
offender probation.
Appellant’s five-year prison sentence was a slight downward departure from
the lowest permissible sentence of 65.7 months reflected on his scoresheet.1 However, the trial judge expressly rejected Appellant’s request for an even lower
sentence, explaining that Appellant’s sentence would be “based on what [] record
[he] has, [his] age, and the type of communication that brought [him] down here, not

1 The State did not object to the downward departure.
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necessarily how many different charges the State could put on [him] for the same
activity.” The judge also emphasized that even though the multiple solicitation
offenses “may have added to the guidelines . . . they’re not going to add to what I’m
going to do.” On appeal, after his counsel filed an Anders brief, Appellant filed a pro se
brief arguing that his solicitation convictions in Counts 3 and 4 violated the
prohibition against double jeopardy because those offenses were subsumed within
the traveling offense in Count 1, and that his sentence was based on an erroneous
sentencing scoresheet because it included both solicitation convictions. We rejected
these arguments and affirmed Appellant’s judgment and sentence in Littleman v. State, 159 So. 3d 975 (Fla. 1st DCA 2015) (Littleman I). Appellant, through counsel,
sought review of Littleman I in the Florida Supreme Court, and in Littleman v. State,
2016 WL 1664985 (Fla. Apr. 27, 2016), the Court quashed Littleman I and remanded
for reconsideration in light of State v. Shelley, 176 So. 3d 914 (Fla. 2015).
On remand, we ordered the State to show cause why Appellant’s convictions
and sentences for the two solicitation offenses should not be vacated based
on Shelley. The State filed a response arguing that Shelley is not controlling here
because the solicitations were two separate and distinct acts, and that even if Shelley
controlled, the remedy would be to vacate only one of the two solicitation
convictions. Appellant, through counsel, filed a reply arguing that both of the
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solicitation convictions should be vacated pursuant to Shelley. We agree with the
State as to the appropriate remedy under the circumstances of this case.
Shelley held that because the statutory elements of solicitation are subsumed
within the statutory elements of traveling after solicitation, double jeopardy
principles prohibit separate convictions for solicitation and traveling when the
offenses are “based on the same conduct.” See 176 So. 3d at 919. However, where
the offenses are not based on the same conduct, Shelley does not prohibit convictions
for both solicitation and traveling after solicitation. See, e.g., Lee v. State, Case Nos.
1D15-943 & 1D15-945 (Fla. 1st DCA June 1, 2017) (en banc); McCarter v. State,
204 So. 3d 529 (Fla. 1st DCA 2016); McCarthy v. State, 193 So. 3d 1059 (Fla. 1st
DCA 2016); Anderson v. State, 190 So. 3d 1120, 1121 (Fla. 1st DCA 2016); Stapler
v. State, 190 So. 3d 162 (Fla. 5th DCA 2016); Meythaler v. State, 175 So. 3d 918,
919 (Fla. 2d DCA 2015).
Here, Appellant was separately charged with and pled to solicitations
involving two different victims and modes of communication: (1) text messages
with the officer posing as a 14-year old girl,2 and (2) email with the officer posing
as the girl’s uncle. Because the offenses were based on different conduct, only one

2 Although the text messages referred to multiple distinct unlawful sexual acts, the State did not take the position in this case that the text messages could support multiple solicitation convictions. Accordingly, for purposes of analyzing Appellant’s double jeopardy claim, we treat all of the text messages as a single act of solicitation.
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of the resulting solicitation convictions was necessarily subsumed in the traveling
offense. Thus, Shelley only requires one of the solicitation convictions to be
vacated.
Accordingly, we reverse and remand for the trial court to vacate one of
Appellant’s solicitation convictions.3 In all other respects, we affirm Appellant’s
judgment and sentence.
AFFIRMED in part; REVERSED in part; REMANDED with directions.
WETHERELL and ROWE, JJ., CONCUR; MAKAR, J., CONCURS SPECIALLY
WITH OPINION.


3 It does not matter which one of the solicitation convictions the trial court vacates because they were both scored the same on Appellant’s scoresheet and it is clear from the trial court’s comments at the sentencing hearing that Appellant was going to receive the same overall sentence irrespective of the number of solicitation convictions. Cf. Brooks v. State, 969 So. 2d 238, 241-42 (Fla. 2007) (scoresheet error is harmless on direct appeal when the record conclusively shows that trial court would have imposed the same sentence).
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MAKAR, J., concurring specially.
Around midnight, Clyde Littleman, Jr., sent an email response to a Craigslist
personal ad (entitled “Don’t waste our time and we won’t waste yours”), the
recipient being a detective pretending to be an uncle seeking someone to have sex
with his 14-year-old niece. After bantering with Littleman about his fictitious niece’s
availability, the detective told Littleman the niece wanted him to text her, which
Littleman did, unaware that his texts (which became sexually explicit) were to the
dual-role-playing detective. The record doesn’t reflect any significant break in time
between the emails and texts. Later that day, Littleman was arrested at a pre-arranged
location where he was to meet the fictitious niece for sex, the relevant charges being
(1) traveling to meet a person believed to be a minor to engage in sexual conduct
after soliciting the minor or the person believed to be the minor’s guardian using a
computer service (§ 847.0135(4), Fla. Stat. (2002)), and (2) two solicitation counts,
one being the use of a computer service to solicit a person believed to be a minor to
engage in sexual conduct and the other doing so to solicit a person believed to be the
guardian of the minor for such purpose (§ 847.0135(3)(a) & (b), Fla. Stat. (2002)).
We initially held that Littleman’s convictions did not violate double jeopardy, but in light of State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015), our holding was
incorrect because solicitation charges are subsumed in traveling charges. No dispute,
therefore, exists that at least one of the two solicitation charges must be vacated. The
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question is whether both should be vacated because they formed a single criminal
episode or, alternatively, whether they are two separate offenses, only one of which
is to be vacated. Compare Hammel v. State, 934 So. 2d 634, 635-36 (Fla. 2d DCA
2006) (double jeopardy violation where “[t]here was no temporal break in the
conversation or a change in circumstances to warrant separate
charges”) with Hartley v. State, 129 So. 3d 486, 490-91 (Fla. 4th DCA 2014) (no
double jeopardy “where there were separations of time between each of the crimes
charged”).
On this record, which includes only the charging document, it is dubious that
the two solicitation charges are part of anything other than a single criminal episode
due to their temporal propinquity. See Hughes v. State, 41 Fla. L. Weekly D2385
(Fla. 5th DCA Oct. 21, 2016) (compiling cases). The arrest report presents the email
and text exchanges as one continuous communication occurring around and just after
midnight; Littleman traveled hours later to the location at which the liaison was to
occur.
But the constitution doesn’t prohibit “multiple punishments for different
offenses arising out of the same criminal transaction as long as the Legislature
intends to authorize separate punishments.” McKinney v. State, 66 So. 3d 852, 854
(Fla. 2011). In light of this principle, the legislative tie-breaker in this case is the
sentence at the end of section 847.0135(3), which states: “Each separate use of a
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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.” Though
the import of this sentence is to authorize punishment for each separately charged
offense, it is unclear whether it applies to both subsections (a) (soliciting minors)
and (b) (soliciting parent/guardian/custodian) or to only subsection (b) to which it is directly attached. The Second District in its Shelley decision implied the latter, saying that the sentence “is an explicit statement of the legislature's intent to
authorize multiple punishments for each violation of section
847.0135(3)(b).” Shelley v. State, 134 So. 3d 1138, 1140 (Fla. 2d DCA 2014)
(emphasis added), approved, 176 So. 3d 914 (Fla. 2015). The Florida Supreme Court
in Shelley, however, did not explicitly limit the sentence to subsection (b), but
likewise did not explicitly include subsection (a); instead, it said that the “statement
pertains only to charging solicitation offenses” in subsection (3) without further
elucidation. 176 So. 3d at 919. Of course, this statement does not apply to traveling
violations under subsection (4), which has no similar statement as to the viability of
separate offenses. Id.
The most reasonable conclusion, based on the structure of subsection (3), is
that the statement applies to both (a) and (b), thereby providing legislative
authorization for separate punishments for persons who solicit children (or those
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believed to be children) and who solicit parent/guardian/custodian (or those believed
to be a parent/guardian/custodian), even if the solicitations are part of a single
criminal episode–as they appear to be here.

Outcome: