Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1338 _____________________________ TRENTON PATRICK HOOKS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Walton County. Kelvin C. Wells, Judge. June 12, 2020 PER CURIAM. Appellant, Trenton Patrick Hooks, appeals his convictions and sentences for traveling to meet a minor to engage in sexual conduct and unlawful use of a two-way communications device to facilitate the commission of a felony. He argues that his convictions violate the prohibition against double jeopardy and constitute fundamental error. For the reasons that follow, we agree. Appellant was charged by amended information with traveling to meet a minor to engage in sexual conduct with consent by a parent 1 (Count 1), using a computer to facilitate or solicit a parent to consent to the sexual conduct of a child (Count 2), transmission of harmful materials to a minor (Count 3), and unlawful use of a two-way communications device to facilitate the commission of a felony 2 (Count 4). The State alleged that the offense of traveling to meet a minor occurred “on or about March 4, 2018,” and the offense of unlawful use of a two-way communications device occurred “between March 1, 2018 and March 4, 2018.” The evidence at trial showed that an officer, posing as the mother of a teenage girl, posted an advertisement in the personal, casual encounters section of Craigslist with the title “Family Fun Weekend W4M [woman for man]” and the description, “I’m looking for someone that can help with my daughter; she’s out of control and needs a male role model . . . .” Appellant responded to the ad, and the two of them corresponded via email and text from about March 1 through March 4, 2018. During those conversations, Appellant requested photos and the officer sent pictures of another undercover officer posing as a thirteen-year-old girl. He asked if she wanted him to have sex with the child and teach her, inquired if the child was still a virgin, and stated he would bring lubricant. He detailed the sex acts he would perform on the child when they met at the agreed upon gas station. Appellant texted to the officer a photograph of him crossing the bridge on his way from Santa Rosa County to Walton County to meet the child on March 4th. Upon arriving at the gas station, Appellant was arrested, and lubricant was found in his car. Appellant was acquitted of Count 3. The jury found Appellant guilty as charged in the remaining counts, but the State nolle prossed Count 2 during sentencing. Appellant was adjudicated guilty of traveling to meet a minor to engage in sexual conduct and unlawfully using a two-way communications device, and he was 1 § 847.0135(4)(b), Fla. Stat. (2018) (prohibiting traveling to meet a minor to engage in unlawful sexual conduct after using computer services or devices to make a prohibited solicitation of a person believed to be a parent). 2 § 934.215, Fla. Stat. (2018). 2 sentenced to concurrent prison terms of fifteen years and five years, respectively. This appeal followed. A double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal. Johnson v. State, 150 So. 3d 214, 214 (Fla. 1st DCA 2014). In Lee v. State, the Florida Supreme Court was called upon to decide “whether, in determining if multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document or the entire evidentiary record.” 258 So. 3d 1297, 1299, 1301 (Fla. 2018) (noting that double jeopardy claims based on undisputed facts are viewed de novo). The Court held that consistent with its decision in State v. Shelley, 176 So. 3d 914 (Fla. 2015), the reviewing court should consider only the charging document, and not the entire evidentiary record, in determining whether multiple convictions are based on the same conduct for purposes of double jeopardy. Id. at 1299, 1304. The Court explained: The conflict in this case is readily resolved by our opinion in Shelley, where we rejected the argument that a reviewing court could save an otherwise nonspecific charging document by conducting its own examination of the evidentiary record to sustain the convictions. A reviewing court’s ability to find evidence in the record to support multiple convictions is insufficient to defeat a double jeopardy claim when nothing in the charging document suggests that the convictions were based on separate conduct. Id. at 1303–04. Lee was charged with traveling to meet a minor to engage in sexual conduct, unlawful use of a two-way communications device, and using a computer to facilitate or solicit the sexual conduct of a child; the information alleged that the traveling offense occurred on or about January 2, 2014, and the other offenses occurred “on one or more occasions between December 22, 2013, and January 1, 2014.” Id. at 1300, 1304. He was found guilty of all three offenses as charged. Id. The Florida Supreme Court found that “the 3 information does not make clear that the State relied on separate conduct to charge the offenses.” Id. at 1304. “Considering only the information, it is impossible to know whether the jury convicted Lee of all three offenses based on the same act of solicitation.” Id. Accordingly, the Court vacated Lee’s convictions for solicitation and unlawful use of a two-way communications device. Id. Turning to this case, the State reluctantly concedes and we agree that the application of Lee compels us to vacate Appellant’s conviction and sentence for unlawful use of a two-way communications device. The State alleged in the information that the offense of traveling to meet a minor to engage in sexual conduct occurred “on or about March 4, 2018,” and the offense of unlawful use of a two-way communications device occurred “between March 1, 2018 and March 4, 2018,” and the jury found Appellant guilty as charged. Because the charging document does not foreclose the possibility that the State relied on the same act for both charges, we must vacate Appellant’s conviction and sentence for unlawful use of a two-way communications device. We affirm Appellant’s conviction for traveling to meet a minor to engage in sexual conduct, but remand for resentencing based on a corrected scoresheet. AFFIRMED in part; REVERSED in part; and REMANDED. LEWIS, ROWE, and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Victor Holder, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. 4