BRANDON STAPLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brandon Stapler was convicted of both soliciting a person believed to be a parent for sex with a minor and traveling after such solicitation under Florida law. The court reversed his solicitation conviction, finding it violated double jeopardy principles as a lesser-included offense of the traveling charge when both arose from the same single criminal episode.
The court affirmed Stapler's traveling conviction but reversed his solicitation conviction as violating double jeopardy, finding the solicitation charge constitutes a lesser-included offense when both charges arise from the same conduct. The court found no double jeopardy violation in reimposing some sex-offender conditions as special conditions since they related to the convicted offense and did not enhance previously imposed conditions. The court remanded for modification of the overbroad condition prohibiting all contact with minors to prohibit only intentional contact without court approval.
[1] A conviction under Florida Statutes section 847.0135(3)(b) is a lesser included offense of a conviction under section 847.0135(4)(b) when based on the same conduct, thus…
[2] A no-contest plea does not preclude an appeal based on a double jeopardy violation if the violation is apparent from the record and there is no indication of waiver.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The Florida Supreme Court has recently held that convictions under both sections 847.0135(3)(b) and 847.0135(4)(b) for the same conduct violate ah 'offender's double-jeopardy rights.”
Establishes the controlling legal principle that dual convictions under these sections violate double jeopardy
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Join FLexlaw to unlock all legal intelligenceStapler entered a no-contest plea to charges under sections 847.0135(3)(b) and (4)(b), involving using a computer to solicit what he believed to be a …
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ON MOTION FOR REHEARING
Appellant and Appellee have both filed motions for rehearing. We grant Appellant’s motion arid deny Appellee’s and substitute the following for our prior opinion.
Brandon Stapler appeals his dual convictions under sections 847,0135(3)(b) and (4)(b), Florida , Statutes (2012) — using' a computer to solicit a person believed to be a parent for sex with a minor (“solicitation”), and traveling after using a computer to solicit a person believed to be" a parent for sex with a minor (“traveling”). Stapler claims that a conviction under both sections violates his constitutional protection from double jeopardy.1 We agree and *164reverse his conviction for solicitation, finding that it constitutes a lesser offense included in the traveling charge.
Stapler entered a no-contest plea to both charges. Generally, a defendant’s plea precludes a later attack on' the grounds of double jeopardy except where “(a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record-to indicate a waiver of the double jeopardy violation.” Novaton v. State, 634 So.2d 607, 609 (Fla.1994).
Stapler did not enter a plea bargain, and while he did waive his right to appeal any issues other than the legality of his sentence and the voluntariness of his plea, this. Court has previously held that such a waiver does not preclude appeal of a double-jeopardy violation. ' See Holubek v. State, 173 So.3d 1114, 1116-17 (Fla. 6th DCA 2015) (citing Latos v. State, 39 So.3d 511, 515 (Fla. 4th DCA 2010)). We therefore consider the merits of Stapler’s double-jeopardy claim.
The Florida Supreme Court has recently held that convictions under both sections 847.0135(3)(b) and 847.0135(4)(b) for the same conduct violate ah 'offender’s double-jeopardy rights. State v. Shelley, 176 So.3d 914, 919 (Fla.2015). The Court found that, except for the travel element— which increases the classification under the statute from a third-degree to a second-degree felony — the two subsections contain the same .elements, and. the legislature did not intend to punish offenders separately for violations of both sections. Id. Thus, the only issue in this case is whether Stapler .can be convicted of multiple solicitations despite being charged with single counts of solicitation and traveling based on conduct occurring over the same specified period of time.
' The State argues that the evidence in this case establishes multiple violations sufficient to justify a conviction under both sections and cites our decision in Pinder v. State, 128 So.3d 141, 143-44 (Fla. 5th DCA 2013) (finding no violation of an offender’s double-jeopardy rights where the. offender engaged in a series of conversations over the course of eight days and expressed his desire to engage in sex with the minor on multiple occasions).. In Pinder, this Court found that the charging document alleged more than one violation of 3(b) and the “evidence [presented at trial] established multiple offenses.” Id, at 142-43. Thus, we. affirmed both convictions. Id. at 144.
While we acknowledge that the State can convict a defendant on multiple counts of solicitation where multiple counts are *165alleged and established,2 we join the Second District Court of Appeal in declining to deny a double-jeopardy claim “based on uncharged conduct simply because it could have been charged.” State v. Shelley, 134 So.3d 1138, 1141-42 (Fla. 2d DCA 2014). Because Stapler was charged with single counts of solicitation and traveling based on the same conduct, we find that dual convictions under both subsections (3)(b) and (4)(b) violate his double-jeopardy rights. See Agama v. State, 181 So.3d 571, 571 (Fla. 2d DCA 2015).- As charged, the communications between Stapler and the undercover officers constitute only a single criminal episode of solicitation, which was then followed by traveling. - We affirm Stapler’s conviction - under ' section 847.0135(4)(b)' but reverse his conviction under section 847.0135(3)(b) accordingly.
Stapler further argues that the trial court violated his double-jeopardy rights by reimposing certain conditions of probation after the trial court struck them. See Peacock v. State, 167 So.3d 514, 516 (Fla. 5th DCA 2015) (“The enhancement of probation conditions, absent proof of a violation, is precluded by double jeopardy principles.”). At Stapler’s initial sentencing, the trial court adjudicated Stapler a sex offender and imposed “sex-offender probation with all the standard conditions” under section 948.30, Florida Statutes (2012).. The trial court apparently believed that because Stapler was adjudicated a sex offender, it was required to impose all of the standard sex-offender conditions. Stapler successfully moved under rule 3.800(b) to have the standard sex-offender conditions struck because section 847.0135(3) is not listed among the offenses that require the imposition of. all the standard sex-offender conditions under section ⅛ 948.30(1). The trial court then reimposed several of the' sex-offender- conditions, finding that the conditions were related to the crime of which Stapler was convicted.
Stapler concedes that ' this Court has previously held that trial courts are permitted to impose sex-offender conditions as special conditions, even for crimes not listed in section 948.30(1), when the conditions are reasonably related to the convicted offense. See Arias v. State, 65 So.3d 104, 104-05 (Fla. 5th DCA 2011) (citing Biller v. State, 618 So.2d 734, 734-35 (Fla.1993)). Given the nature of Stapler’s offense, we find there was no error in imposing these several sex-offénder conditions. We likewise find that there was no double-jeopardy violation because reimposing some of the previously imposed sex-offender conditions did not constitute an enhancement of the conditions of Stapler’s probation. The trial court’s order effectively struck several conditions already imposed and narrowed others to more properly relate to the convicted offense.
Finally, Stapler challenges the conditions of his probation as improperly broad. We have previously held that conditions forbidding contact with minors are overly broad because they subject,offenders to possible punishment for innocent or inadvertent conduct. Lamerton v. State, 78 So.3d 686, 686 (Fla. 5th DCA 2012); Rowles v. State, 682 So.2d 1184, 1184-85 (Fla. 5th DCA 1996). On remand, the trial court should modify this condition of probation to prohibit only intentional contact with minors without prior court approval.3
*166AFFIRMED in part; REVERSED in part; REMANDED for resentencing.
WALLIS and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Pamblanco v. State, 199 So. 3d 507 (Fla. 5th DCA 2016)…tion and traveling with regard to the multiple offenses occurring on multiple occasions. However, the information charged Appellant with one count of solicitation and one count of traveling based on the same conduct. Relying upon Stapler v. State, 190 So. 3d 162 (Fla. 5th DCA 2016), decided after the postconviction court’s ruling in this case, we find that the dual convictions and sentences violated Appellant’s right to be free from double jeopardy. 190 So. 3d at 165. Accordingly, we affirm his conviction u…
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LEE v. State, 223 So. 3d 342 (Fla. 1st DCA 2017)…of four days, that appellant’s convictions for traveling and solicitation violated double jeopardy by examining only the charging documents and without analyzing whether his convictions were based on distinct acts of solicitation); Stapler v. State, 190 So. 3d 162, 164 (Fla. 5th DCA 2016) (finding a double jeopardy violation despite evidence of multiple acts of solicitation, and expressly declining to consider any information outside of the charging document). Those courts should have applied the three-step a…1 / 2
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Honaker v. State, 199 So. 3d 1068 (Fla. 5th DCA 2016)…conduct. Id. at 919 (citation omitted). Following Shelley, our court has held that double jeopardy prohibits dual convictions when a defendant is charged for “single counts of solicitation and traveling based on the same conduct.” Stapler v. State, 190 So. 3d 162, 165 (Fla. 5th DCA 2016) (citing Agama v. State, 181 So. 3d 571, 571 (Fla. 2d DCA 2015)). When a double jeopardy violation occurs, “the proper remedy is to vacate the solicitation conviction because it is the lesser offense.” Senger v. State, 25 So.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Biller v. State, 618 So. 2d 734 (Fla. 1993)
- State v. Shelley, 176 So. 3d 914 (Fla. 2015)
- Shelley v. State, 134 So. 3d 1138 (Fla. 2d DCA 2014)
- Pinder v. State, 128 So. 3d 141 (Fla. 5th DCA 2013)
- Holubek v. State, 173 So. 3d 1114 (Fla. 5th DCA 2015)
- Rowles v. State, 682 So. 2d 1184 (Fla. 5th DCA 1996)
- Latos v. State, 39 So. 3d 511 (Fla. 4th DCA 2010)
- Arias v. State, 65 So. 3d 104 (Fla. 5th DCA 2011)
- Tellier v. State, 754 So. 2d 88 (Fla. 5th DCA 2000)