Case Number: 13-4464

Judge: PER CURIAM

Court: FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

Plaintiff's Attorney: Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General

Defendant's Attorney: Ethan Andrew Way

Description: This court previously affirmed Sherman’s convictions, Sherman v. State, 160 So. 3d 494 (Fla. 1st DCA 2015), but the supreme court quashed that decision and remanded for reconsideration in light of State v. Shelley, 176 So. 3d 914 (Fla. 2015). On remand, we again affirm. As in today’s decision in Dygart v. State, 1D13-4977 (Fla. 1st DCA May 18, 2018), and as required by our en banc decision in Lee v. State, 223 So. 3d 342, 351-52 (Fla. 1st DCA 2017) (en banc), review granted, SC17-1555 (Feb. 8, 2018), we conclude that because the record shows multiple, discrete solicitations, Sherman cannot meet his burden of showing that his separate convictions for solicitation (in violation of section 847.0135(3)(a), Florida Statutes) and traveling after solicitation
(in violation of section 847.0135(4)(a)) were “based on the same conduct.” See Lee, 223 So. 3d at 351 (quoting Shelley, 176 So. 3d at 919). In Shelley, the supreme court held that separate convictions for both solicitation and traveling after solicitation cannot stand if they are based on the same conduct. Id. The traveling and solicitation counts both require proof that the defendant solicited a child (or someone he thought was a child), and under Shelley, a single solicitation cannot form the basis of both convictions. See Lee, 223 So. 3d at 351-52. But where a defendant’s conduct includes more than one solicitation, Shelley does not require the State to ignore all the solicitations but one. “Shelley does not disturb well-established precedent allowing for multiple punishments where a defendant commits multiple criminal acts.” Id. at 351. Instead, “the holding in Shelley is limited to cases where the defendant is convicted of both solicitation and traveling after solicitation based on a single act of solicitation.” Id.

Outcome: In this case, the record demonstrates that Sherman’s two convictions did not turn on a single solicitation. Using two separate email accounts, Sherman solicited a child (or someone he thought was a child) several times before driving to her house for sex. Sherman’s multiple solicitations justified his multiple charges and his multiple convictions. This is therefore not about “uncharged conduct”: Sherman was charged with two crimes and convicted of two crimes, and the State did not rely on the “same conduct” for both. There is no double-jeopardy violation.

AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: