DUSTIN ELSBERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's convictions under Florida Statute § 847.0135(3)(a) and (4)(a) for using a computer to solicit a minor and traveling to engage in sexual conduct with a minor do not violate double jeopardy, following State v. Murphy.
Separate convictions for using a computer service to solicit a person believed to be a child to engage in unlawful sexual conduct and thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child do not violate double jeopardy.
[1] Separate convictions under Fla. …
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of using a computer service to solicit a person believed to be a child to engage in unlawful sexual conduct and of traveling f…
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Appellant was convicted and sentenced for using a computer service to solicit a person believed to be a child to engage in unlawful sexual conduct, and for thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child. See § 847.0135(3)(a), (4)(a), Fla. Stat. (2011). Appellant raises three issues on appeal. We affirm as to all issues and briefly discuss one.
Appellant asserts that his convictions for both charges arising out of the same criminal transaction violate double jeopardy. This court previously held that separate convictions for use of a computer service to solicit someone believed to be the parent of a child to engage in unlawful sexual conduct with the child, and thereafter traveling for the purpose of engaging in unlawful sexual conduct with the child, as prohibited by subsections 847.0135(3)(b) and (4)(b), did not violate double jeopardy. See State v. Murphy, 124 So.3d 323, 330-31 (Fla. 1st DCA 2013). We find no meaningful distinction for the purpose of double jeopardy analysis between violations of those subsections and the subsections for which appellant was convicted. We, therefore, find Murphy to be controlling. We do, however, certify conflict with the decisions of Hartley v. State, 129 So.3d 486 (Fla. 4th DCA 2014), and Pinder v. State, 128 So.3d 141 (Fla. 5th DCA 2013).
AFFIRMED.
VAN NORTWICK and CLARK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cantrell v. State, 132 So. 3d 931 (Fla. 1st DCA 2014)…e the solicitation offense under section 847.0135(3) was subsumed within the traveling offense under section 847.0135(4). Hartley v. State, 129 So. 3d 486, 2014 WL 51703 (Fla. 4th DCA 2014) (on motion for rehearing). As we did in Elsberry v. State, 130 So. 3d 798, 2014 WL 464058 (Fla. 1st DCA 2014), we certify conflict with Hartley. VAN NORTWICK, PADOVANO, and ROWE, JJ., concur.…
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Snow v. State, 157 So. 3d 559 (Fla. 1st DCA 2015)…st DCA 2013), we rejected this double jeopardy claim upon concluding that subsections 847.0135(3) and (4), Florida Statutes, reflect a clear legislative intent to punish the offenses separately. This holding has been reaffirmed in Elsberry v. State, 130 So. 3d 798 (Fla. 1st DCA 2014); Cantrell v. State, 132 So. 3d 931 (Fla. 1st DCA 2014); [*561] Griffis v. State, 133 So. 3d 653 (Fla. 1st DCA 2014); State v. Davis, 141 So. 3d 1230 (Fla. 1st DCA 2014); Ho Yeaon Seo v. State, 143 So. 3d 1189 (Fla. 1st DCA 2014);…
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Griffis v. State, 133 So. 3d 653 (Fla. 1st DCA 2014)…olate double jeopardy because sections 847.0135(3) and (4) reflect a clear legislative intent to punish the offenses separately. Accord Cantrell v. State, No. 1D12-4952, 132 So. 3d 931, 2014 WL 660193 (Fla. 1st DCA Feb. 21, 2014); Elsberry v. State, 130 So. 3d 798 (Fla. 1st DCA 2014). We recognize that the Fourth District reached the opposite conclusion in Hartley v. State, 129 So. 3d 486 (Fla. 4th DCA 2014), and accordingly we certify conflict with that decision. See also Pinder v. State, 128 So. 3d 141 (Fla…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Murphy, 124 So. 3d 323 (Fla. 1st DCA 2013)
- Hartley v. State, 129 So. 3d 486 (Fla. 4th DCA 2014)
- Pinder v. State, 128 So. 3d 141 (Fla. 5th DCA 2013)