RYAN MCCARTHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ryan McCarthy appealed his convictions for unlawful use of a computer service and traveling to meet a minor, arguing they violated double jeopardy. The Florida Supreme Court remanded the case for reconsideration in light of State v. Shelley, and the appellate court reversed and remanded, vacating the lesser offense conviction while affirming the remaining convictions.
Because both convictions were based on the same conduct, the conviction and sentence for unlawful use of a computer service (the lesser offense) must be vacated as violating double jeopardy. McCarthy's remaining convictions and sentences are affirmed.
[1] A conviction for traveling to solicit a child to commit a sexual act and a conviction for using a computer to solicit a person to commit a sexual act on a child, arising…
[2] The legislature has not explicitly stated its intent to authorize separate convictions and punishments for conduct that constitutes both solicitation via computer and tra…
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Join FLexlaw to unlock all legal intelligence“Because both of these charges were based on the same conduct, we REVERSE and REMAND with instructions for the trial court to vacate his conviction and sentence for unlawful use of a computer service as it is the lesser offense.”
States the court's holding on the double jeopardy violation
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Join FLexlaw to unlock all legal intelligenceRyan McCarthy was charged with one count of unlawful use of a computer service and one count of traveling to meet a minor. Both charges were based on …
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ON REMAND FROM THE FLORIDA . SUPREME COURT
The Florida Supreme Court quashed the decision of this' Court reported at 145 So.3d.222 (Fla. 1st DCA 2014), and remanded for reconsideration in light of its décision in State v. Shelley, 176 So.3d 914 (Fla.2015). The only issue now before this Court is whether Ryan McCarthy’s convictions for unlawful use of a computer service and traveling to meet, a minor violate double jeopardy. In response to our show cause order, the State concedes that the reasoning in Shelley is equally applicable to these facts even though Shelley involved violations of sections 847.0135(3)(b) and (4)(b), Florida Statutes, and this case involves violations of sections 847.0135(3)(a) and (4)(a), Florida Statutes. Id. at 918-19. Here, McCarthy was charged with a single count, of unlawful ,use, of a computer service and a single count of traveling to meet a minor; both of these charges were based on the same conduct.1 Because both o.f these charges were based on the same conduct, we REVERSE and REMAND with instructions for the trial court to vacate his conviction and sentence for unlawful use of a computer service as it is the lesser offense. Id. at 919. We AFFIRM his remaining convictions and sentences.
WOLF and OSTERHAUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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LEE v. State, 223 So. 3d 342 (Fla. 1st DCA 2017)…case, specifically saying that multiple counts of solicitation are permissible.29 Carefully crafted counts—that don’t overlap in violation of Shelley—are workable in most, if not all, cases. Indeed, this approach was suggested in McCarthy v. State, 193 So. 3d 1059, 1059 (Fla. 1st DCA 2016), which involved a double jeopardy violation arising from “a single count of unlawful use of a computer service and a single count of traveling to meet a minor; both of these charges were based on the same conduct.” In a foo…
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Littleman v. State, 222 So. 3d 616 (Fla. 1st DCA 2017)…not prohibit convictions for both solicitation and traveling after solicitation. See, e.g., Lee v. State, Case Nos. 1D15-943 & 1D15-945 (Fla. 1st DCA June 1, 2017) (en banc); McCarter v. State, 204 So. 3d 529 (Fla. 1st DCA 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 ple…
Authorities Cited
- State v. Shelley, 176 So. 3d 914 (Fla. 2015)
- Stuard Antonio Meythaler v. State, 175 So. 3d 918 (Fla. 2d DCA 2015)