HERNANDEZ v. STATE (2018)

District Court of Appeal of Florida, First District.

Eduardo HERNANDEZ, Appellant, v. STATE of Florida, Appellee.

No. 1D12–5952

Decided: June 28, 2018

Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, Charles R. McCoy, Senior Assistant Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.

On Remand from the Florida Supreme Court

This court previously affirmed Eduardo Hernandez's convictions and sentences for use of a computer online service to solicit a person believed to be a child to engage in unlawful sexual conduct in violation of section 847.0135(3)(a), Florida Statutes (2011), and for thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child in violation of section 847.0135(4)(a), Florida Statutes (2011). See Hernandez v. State, 135 So.3d 352 (Fla. 1st DCA 2013). After issuance of that opinion, the Florida Supreme Court ruled that double jeopardy principles prohibit separate convictions for solicitation and traveling based on the same conduct. State v. Shelley, 176 So.3d 914, 919 (Fla. 2015).

In light of Shelley, the Florida Supreme Court quashed our opinion in Hernandez. See Hernandez v. State, No. SC14–2008, 2016 WL 3185141 (Fla. June 8, 2016). Therefore, in accordance with the mandate from the supreme court, this cause is remanded to the trial court with instructions to vacate Hernandez's conviction and sentence for the lesser-included offense of solicitation as prohibited by section 847.0135(3)(a).

Remanded with instructions.

Per Curiam.

Lewis, Osterhaus, and Jay, JJ., concur.

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