SANG YOUN KIM, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2015-01-07

No. 2D13-6244

LaROSE and SLEET, JJ., Concur.

154 So. 3d 1168 Florida District Court of Appeal, Second District (2015) Positive Treatment

Cited by 11 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

Dual convictions for soliciting a child to commit a sex act and traveling to meet a child for sex violate double jeopardy principles because the soliciting offense is subsumed by the traveling offense.

Headnotes

[1] Dual convictions for soliciting a child to commit a sex act and traveling to meet a child for such purpose violate the prohibition against double jeopardy when the solici…

[2] The offense of using a computer to solicit a child to commit a sex act is an element of the offense of traveling to meet a child for such purpose.

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Facts & Procedural History

Defendant communicated with an undercover officer posing as a minor, indicating intent to have sex. He then traveled to meet the supposed minor, where…

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Topics

Merger Of Offenses Double Jeopardy Statutory Construction Statutory Interpretation

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Opinion of the Court

KHOUZAM, Judge.

Sang Youn Kim pleaded no contest to traveling to seduce/solicit/entice a child to commit a sex act and use of a computer to seduce/solicit/entice a child to commit a sex act, reserving the right to appeal the denial of his motion to dismiss on double jeopardy grounds. Because these dual convictions violate the prohibition against double jeopardy, we affirm in part and vacate in part.

The record shows that on September 15, 2012, Kim responded to a Craigslist ad placed by an undercover officer. The officer advised Kim — who was forty-six years *1169old at the time — that he was communicating with a fourteen-year-old girl. The next day (September 16), Kim continued communicating with the fictitious girl via email, indicating that he wanted to have sex with her. He arranged to meet at a location in Manatee County that he believed was the girl’s home, traveled from his Tampa home to the Manatee County location, and was taken into custody upon his arrival.

Kim was charged with traveling to seduce/solicit/entice a child to commit a sex act under section 847.0135(4)(a), Florida Statutes (2012), and use of a computer to seduce/solicit/entice a child to commit a sex act under section 847.0135(3)(a). Both offenses were alleged to have occurred on September 16, 2012. He moved to dismiss on double jeopardy grounds. The trial court denied the motion, determining that the dual charges did not violate double jeopardy principles.

But in the recent opinion Shelley v. State, this court addressed a nearly identical issue, holding as follows:

In essence, the traveling offense [under section 847.0135(4)(b) ] proscribes traveling to meet a child to engage in unlawful sexual contact after having solicited the child’s parent, legal guardian, or custodian or a person believed to be such. Thus, the soliciting offense [under section 847.0135(3)(b) ] does not contain an element that is not found in the traveling offense. See [Hartley v. State, 129 So.3d 486, 491 (Fla. 4th DCA 2014) ]; [Pinder v. State, 128 So.3d 141, 143 (Fla. 5th DCA 2013) ]. As a result, dual convictions for soliciting and traveling in the course of one criminal transaction or episode violate the prohibition against double jeopardy. Id.

134 So.3d 1138, 1141 (Fla. 2d DCA), review granted, 147 So.3d 527 (Fla.2014). This analysis applies equally to the charges in question here, soliciting under section 847.0135(3)(a) and traveling under section 847.0135(4)(a), which run parallel to the statutory sections addressed in Shelley. 1 Thus, “the convictions for both soliciting *1170and traveling as charged in this case violate the prohibition against double jeopardy because the soliciting offense is subsumed by the traveling offense.” Shelley, 134 So.3d at 1142. We affirm the conviction and sentence for traveling and vacate the conviction and sentence for soliciting. See id. We also certify conflict with the First District’s decision in State v. Murphy, 124 So.Sd 323 (Fla. 1st DCA 2013), as this court did in Shelley. See id.

Affirmed in part and vacated in part; conflict certified.

LaROSE and SLEET, JJ., Concur.

. The statutory sections appear in their entirety as follows:

(3) Certain uses of computer services or devices prohibited. — -Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:

(a) Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child; or

(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct,

commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who, in violating this subsection, misrepresents his or her age, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Each separate use of a 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.

(4) Traveling to meet a minor. — Any person who travels any distance either within this state, to this state, or from this state by any means, who attempts to do so, or who causes another to do so or to attempt to do so for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child *1170or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:

(a) Seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to engage in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child; or

(b) Solicit, lure, or entice or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct,

commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 847.0135.

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Stuard Antonio Meythaler v. State, 175 So. 3d 918 (Fla. 2d DCA 2015)

…burger same-elements test codified in section 775.021(4), Florida Statutes. Id. at-, at S364 (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). . The holding in Shelley is binding in this case. In Kim v. State, 154 So. 3d 1168 (Fla. 2d DCA 2015), as in the present case, the appellant was charged with violating sections 847.0135(3)(a) and 847.0135(4)(a). This court held that the analysis in Shelley v. State,. 134 So. 3d 1138 (Fla. 2d DCA 2014),1 applies equally to the char…
Hughes v. State, 201 So. 3d 1230 (Fla. 5th DCA 2016)

…sidering Appellant was charged with traveling to meet a minor on that same day. See Shelley, 176 So. 3d at 919 (holding double jeopardy bars dual convictions for solicitation and traveling based on the same conduct); see also Sang Youn Kim v. State, 154 So. 3d 1168,1169 (Fla. 2d DCA 2015) (vacating solicitation offense where the information alleged it occurred on the same day as the traveling offense). Furthermore, the majority opinion’s speculation regarding what might have happened to the timeline but for A…
Chepelevich v. State, 184 So. 3d 1138 (Fla. 2d DCA 2015)

…ibly place [the defendant] in double jeopar-dy_” State v. Shelley, 176 So. 3d 914, (Fla. June 25, 2015). Because his dual convictions were based upon the same conduct, they violate the prohibition against double jeopardy. See Sang Youn Kim v. State, 154 So. 3d 1168, 1169-70 (Fla. 2d DCA 2015). Accordingly, we affirm the conviction and sentence for traveling and vacate the conviction and sentence for soliciting as the soliciting offense is subsumed by the traveling offense. Id. at 1170. Affirmed in part and v…

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Authorities Cited

Shelley v. State, 134 So. 3d 1138 (Fla. 2d DCA 2014)
Hartley v. State, 129 So. 3d 486 (Fla. 4th DCA 2014)
Pinder v. State, 128 So. 3d 141 (Fla. 5th DCA 2013)

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SANG YOUN KIM, APPELLANT, v. STATE OF FLORIDA, APPELLEE

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SANG YOUN KIM, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE