CLYDE LITTLEMAN, JR., Appellant, v. STATE OF FLORIDA, Appellee.
ON REMAND FROM THE FLORIDA SUPREME COURT
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 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 downward departure from the lowest permissible sentence of 65.7 months reflected on his scoresheet. 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 necessarily how many different charges the State could put on [him] for the same activity.” The judge also emphasized that even though the 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 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 Shelley, 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., McCarter v. State, 41 Fla. L. Weekly D2100 (Fla. 1st DCA Sep. 8, 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, and (2) email with the officer posing as the girl's uncle. Because the offenses were based on different conduct, only one 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. In all other respects, we affirm Appellant's judgment and sentence.
AFFIRMED in part; REVERSED in part; REMANDED with directions.
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 for an encounter, 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 email and the text sessions. 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 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. 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 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 after midnight with the detective who played the two roles; Littleman responded to the communications by traveling later that day to the location at which the liaison was to occur. That's all the record tells us. A remand to the trial court to vacate just one of the solicitation counts, without specifying which one or how to do so (by coin flip?), suggests that both are so intertwined with the traveling count as to be a single episode. For these reasons, I would either remand to the trial court for factual findings to determine whether a single criminal episode existed or, alternatively, require that both solicitation charges be vacated under Shelley.
WETHERELL and ROWE, JJ., CONCUR; MAKAR, J., DISSENTS WITH OPINION.