BRIAN THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
Brian Thomas was convicted of traveling to meet a person to solicit a child to commit a sexual act, using a computer to solicit a person to commit a sexual act on a child, and attempted lewd or lascivious battery. The court reversed his conviction on count II (computer solicitation) on double jeopardy grounds, finding that counts I and II arose from the same criminal conduct and therefore could not support separate convictions.
The court held that counts I and II violated the constitutional prohibition against double jeopardy because both convictions were based on the same course of conduct. The court reversed Thomas's conviction and sentence on count II (computer solicitation) and remanded for the trial court to vacate that conviction and sentence.
[1] Double jeopardy principles prohibit multiple convictions and punishments for the same criminal offense when the legislature has not expressed an intent to authorize separ…
[2] Under the Blockburger test, offenses are considered the same for double jeopardy purposes if each offense does not contain an element that the other does not.
Previewing 2 of 4 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“Based on the plain language of section 847.0135, we hold that the legislature has not explicitly stated its intent to authorize separate convictions and punishments for conduct that constitutes both solicitation under subsection (3)(b) and traveling after solicitation under subsection (4)(b).”
Establishes the foundational legal principle from State v. Shelley that separate convictions for solicitation and traveling after solicitation are not authorized when based on the same conduct.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBrian Thomas, while searching for a sexual liaison on Craigslist, encountered a posting from an undercover Florida Department of Law Enforcement Agent…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Lesser Included Offense Analysis cases and more on FLexlaw
Following a jury trial, Brian Thomas was convicted and sentenced on one count of traveling to meet a person to solicit a child to commit a sexual act under section 847.0135(4)(b), Florida Statutes (2012) (count I), one count of using a computer to solicit a person to commit a sexual act on a child in violation of section 847.0135(3)(b) (2012) (count II), and one count of attempted lewd or lascivious battery under sections 800.04(a) and 777.04 (2012) (count III). He raises several issues in his appeal, but we find merit in only one, the denial of his motion for arrest of judgment and motion to dismiss count II of the information.
' Both counts I and II stemmed from the same course of conduct on the part of Mr. Thomas, who, by his own admission, was searching for a sexual liaison on Craigslist when he happened across a posting from what turned out to be an undercover Florida Department of Law Enforcement Agent posing as the online mother to fictional, minor-aged children. The operative information underlying Mr. Thomas’ charges and criminal proceedings alleged, in count II, that Mr. Thomas, “on or about March 19, 2013, through March 22, 2013,” used a computer online service to solicit the undercover agent for the purpose of engaging in unlawful sexual activity with minor children. Count I of the operative information alleged that Mr. Thomas then traveled on March 22, 2013, in order to solicit the agent for the purpose of engaging in unlawful sexual conduct with the children. The State does not describe any temporal break between Mr. Thomas’ sustained and increasingly lurid text messages and online communications soliciting the FDLE agent from March 19 through March 22 and his driving to meet the agent at an agreed upon location on March 22.
As such, Mr. Thomas is correct that his convictions for traveling to solicit under count I and solicitation under count II, under these facts, encompassed the same criminal conduct and violated the constitutional prohibition against double jeopardy. See State v. Shelley, 176 So.3d 914, 919 (Fla.2015) (“Based on the plain language of section 847.0135, we hold that the [ljegisla-*37ture has not explicitly stated its intent to authorize separate convictions and punishments for conduct that constitutes both solicitation under subsection (3)(b) and traveling after solicitation under subsection (4)(b).”); Mahar v. State, 190 So.3d 1123, 1125 (Fla. 2d DCA 2016) (“[T]he supreme court in Shelley considered and rejected the State’s argument that the legislature intended to allow for multiple convictions that treat each instance of online communication as a separate offense, thereby also allowing for a conviction for both the communications and traveling for the same conduct.”); Meythaler v. State, 175 So.3d 918, 920 (Fla. 2d DCA 2015) (“Accordingly, Mr. Meythaler’s convictions and sentences for solicitation and traveling after solicitation based upon the same conduct impermissibly place him in double jeopardy.”). We must, therefore, reverse Mr. Thomas’ conviction and sentence for solicitation under count II and remand for the circuit court to vacate the conviction and sentence as to that count.
Affirmed in part; reversed in part; remanded with instructions.
NORTHCUTT and SILBERMAN, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
LEE v. State, 223 So. 3d 342 (Fla. 1st DCA 2017)…inal episodes or distinct acts, the courts appear to have proceeded directly to the third step of the double jeopardy analysis without examining whether the offenses arose from separate criminal episodes or distinct acts. See, e.g., Thomas v. State, 209 So. 3d 35, 35 (Fla. 2d DCA 2016) (concluding, despite evidence at trial of “increasingly lurid text messages and communications” over the course of four days, that appellant’s convictions for traveling and solicitation violated double jeopardy by examining on…1 / 2
-
LEE v. State, 258 So. 3d 1297 (Fla. 2018)…e for an appellate court to review the entire evidentiary record to determine whether multiple convictions violate double jeopardy. This holding is in conflict with decisions from the Second and Fifth District Courts of Appeal. See Thomas v. State , 209 So. 3d 35 (Fla. 2d DCA 2016) ; Honaker v. State , 199 So. 3d 1068 (Fla. 5th DCA 2016) ; Stapler v. State , 190 So. 3d 162 (Fla. 5th DCA 2016) ; Holt v. State , 173 So. 3d 1079 (Fla. 5th DCA 2015) ; and Mizner v. State , 154 So. 3d 391 (Fla. 2d DCA 2014).1 We…
Authorities Cited
- State v. Shelley, 176 So. 3d 914 (Fla. 2015)
- Stuard Antonio Meythaler v. State, 175 So. 3d 918 (Fla. 2d DCA 2015)
- Mahar v. State, 190 So. 3d 1123 (Fla. 2d DCA 2016)