HAZAEL SANTIAGO-MORALES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2017-03-07
No. CASE NO. 1D15-1018
ROBERTS, C.J., and LEWIS, J., CONCUR.
212 So. 3d 509 Florida District Court of Appeal, First District (2017)

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Synopsis

Santiago-Morales was convicted of both soliciting a parent to permit sexual conduct with a child and traveling to meet a minor for such conduct, based on the same criminal episode. The court reversed the lesser conviction under Florida Supreme Court precedent holding that double jeopardy principles prohibit separate convictions for these offenses when based on the same conduct.


Holding

Santiago-Morales's conviction for soliciting a parent to permit sexual conduct with a child (the lesser included offense) must be reversed because double jeopardy principles prohibit separate convictions under the two statutes when both are based on the same conduct, as established in State v. Shelley.


Headnotes

[1] Double jeopardy principles prohibit separate convictions under Florida Statutes sections 847.0135(3)(b) and 847.0135(4)(b) when based upon the same conduct.

[2] A conviction for soliciting consent to engage in unlawful sexual conduct with a child and a conviction for traveling to meet a minor for unlawful sexual conduct after suc…

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Key Quotes

“the state supreme court held that double-jeopardy principles prohibit separate convictions under sections 847.0135(3)(b) and 847.0135(4)(b) if "based upon the same conduct."”

Establishes the controlling legal standard from Shelley that applies to this case

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Facts & Procedural History

Santiago-Morales contacted what he believed was a single mother through Craigslist, seeking to engage in sexual conduct with her fourteen-year-old dau…

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Opinion of the Court
WINSOR, J.

WINSOR, J.

Hazael Santiago-Morales did not realize he was emailing an undercover officer. He thought the person he was emailing (a person he met through Craigslist) was a *510single mother seeking an older man to “teach” her fourteen-year-old daughter about sex. After making detailed arrangements by phone and email, Santiago-Morales di’ove from the Panama City area to Tallahassee, anticipating sex with a child. Police arrested him when he arrived.

The State charged Santiago-Morales with violating section 847.0135(3)(b), Florida Statutes, “which prohibits the use of computer services or devices to solicit the consent of a parent or a person believed to be the parent, legal guardian, or custodian of a child to engage in unlawful sexual conduct with the child,” State v. Shelley, 176 So.3d 914, 916 (Fla. 2015), reh’g denied (Oct. 9, 2015). The State also charged him with violating section 847.0136(4)(b), “which prohibits traveling to meet a minor to engage in unlawful sexual conduct after using computer services or devices to make a prohibited solicitation,” id. at 917. A jury convicted Santiago-Morales of both.

On appeal, Santiago-Morales argues entrapment and double jeopardy. We reject his entrapment arguments without discussion. But bound by the Florida Supreme Court’s recent Shelley decision, and consistent with the State’s concession, we agree with Santiago-Morales that his lesser conviction cannot stand.

In Shelley, which came down after the trial in this case, the state supreme court held that double-jeopardy principles prohibit separate convictions under sections 847.0135(3)(b) and 847.0135(4)(b) if “based upon the same conduct.” 176 So,3d at 919. In this case, as the State concedes, both charges were based on same conduct. Santiago-Morales solicited the fictitious mother for sex with the fictitious child, and then he traveled based on that same solicitation. This is not a case in which the “solicitation and traveling convictions arose from different criminal episodes and acts,” McCarter v. State, 204 So.3d 529, 530 (Fla. 1st DCA 2016)—if it were, the separate convictions could stand. In this case, on the particular facts before us, Shelley obligates us to reverse Santiago-Morales’s lesser included conviction.

We therefore reverse and remand for the trial court to vacate Santiago-Morales’s conviction and sentence for violating section 847.0135(3)(b). We affirm in all other respects.

AFFIRMED IN PART and REVERSED IN PART.

ROBERTS, C.J., and LEWIS, J., CONCUR.


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