
    Clyde LITTLEMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-1642
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017
    
      Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee,
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In the early morning hours of October 13, 2013, Appellant, age 31, engaged in sexiially-explicit online communications with an undercover officer posing as a 14-year-old girl and her uncle. Among other things, Appellant told the officer posing as the girl that he was going to use his tongue on her “private area”, and then “slowly put [himjself inside [her] and .,. do that [until he’s] done and [she’s] satisfied.” That evening, Appellant traveled to what he thought was the girl’s house in order to have sex with her. Appellant was arrested. upon his arrival at the house.

Appellant was charged with four offenses, only three of which are at issue in this appeal: Count 1, traveling to meet a person believed to be a minor to engage in sexual conduct in violation of section 847.0135(4), Florida Statutes (2013); Count 3, using a computer service to solicit a person believed to be a minor to engage in sexual conduct in violation of section 847.0135(3)(a); and Count 4, using a computer service to solicit a person believed to be a minor’s guardian to allow sexual conduct with the minor in violation of section 847.0135(3)(b). Appellant pled guilty, to Count 1 and no contest to Counts 3 and 4. He was adjudicated guilty on all counts and sentenced to concurrent five-year prison terms, followed by five years of sexual offender probation.

Appellant’s five-year prison sentence was a slight downward departure from the lowest permissible sentence of 65.7 months reflected on his scoresheet. However, the trial judge expressly rejected Appellant’s request for an even lower sentence, explaining that Appellant’s sentence would be “based on what [ ] record [he] has, [his] age, and the type of communication that brought [him] down here, not necessarily how many different charges the State could put on [him] .for the same activity.” The judge also emphasized that even though the multiple solicitation offenses “may have added to the guidelines they’re not going to add to what I’m going to do.”

On appeal, after his counsel filed an Anders brief, Appellant filed a pro se brief arguing that his solicitation convictions in Counts 3 and 4 violated the prohibition against double jeopardy because those offenses were subsumed within the traveling offense in Count 1, and that his sentence was based on an erroneous sentencing scoresheet because it included both solicitation convictions. We rejected these arguments and affirmed Appellant’s judgment and sentence in Littleman v. State, 159 So.3d 975 (Fla. 1st DCA 2015) (Littleman I). Appellant, through counsel, sought review of Littleman I in the Florida Supreme Court, and in Littleman v. State, 2016 WL 1664985 (Fla. Apr. 27, 2016), the Court quashed Littleman I and remanded for reconsideration in light of State v. Shelley, 176 So.3d 914 (Fla. 2015).

On remand, we ordered the State to show cause why Appellant’s convictions and sentences for the two solicitation offenses should not be vacated based on Shelley. The State filed a response arguing that Shelley is not controlling here because the solicitations were two separate and distinct acts, and that even if Shelley controlled, the remedy would be to vacate only one of the two solicitation convictions. Appellant, through counsel, filed a reply arguing that both of the solicitation convictions should be vacated pursuant to Shelley. We agree with the State as to the appropriate remedy under the circumstances of this case.

Shelley held that because the statutory elements of solicitation are subsumed within the statutory elements of traveling after solicitation, double jeopardy principles prohibit separate convictions for solicitation and traveling when the offenses are “based on the same conduct.” See 176 So.3d at 919. However, where the offenses are not based on the same conduct, Shelley does 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 pled to solicitations involving two different victims and modes of communication: (1) text messages with the officer posing as a 14-year old girl, and (2) email with the officer posing as the girl’s uncle. Because the offenses were based on different conduct, only one of the resulting solicitation convictions was necessarily subsumed in the traveling offense. Thus, Shelley only requires one of the solicitation convictions to be vacated.

Accordingly, we reverse and remand for the trial court to vacate one of Appellant’s solicitation convictions. In all other respects, we affirm Appellant’s judgment and sentence.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

WETHERELL and ROWE, JJ., CONCUR; MAKAR, J., CONCURS SPECIALLY WITH OPINION.

MAKAR, J.,

concurring specially.

Around midnight, Clyde Littleman, Jr., sent an email response to a Craigslist personal ad (entitled “Don’t waste our time and we won’t waste yours”), the recipient being a detective pretending to be an uncle seeking someone to have sex with his 14-year-old niece. After bantering with Little-man about his fictitious niece’s availability, the detective told Littleman the niece wanted him to text her, which Littleman did, unaware that his texts (which became sexually explicit) were to the dual-role-playing detective. The record doesn’t reflect any significant break in time between the emails and texts. Later that day, Lit-tleman was arrested at a pre-arranged location where he was to meet the fictitious niece for sex, the relevant charges being (1) traveling to meet a person believed to be a minor to engage in sexual conduct after soliciting the minor or the person believed to be the minor’s guardian using a computer service (§ 847.0135(4), Fla. Stat. (2002)), and (2) two solicitation counts, one being the use of a computer service to solicit a person believed- to be a minor to engage in sexual conduct and the other doing so to solicit a person believed to be the guardian of the minor for such purpose (§ 847.0135(3)(a) & (b), Fla. Stat. (2002)).

We initially held that Littleman’s convictions did not violate double jeopardy, but in light of State v. Shelley, 176 So.3d 914, 919 (Fla. 2015), our holding was incorrect because solicitation charges are subsumed in traveling charges. No dispute, therefore, exists that at least one of the two solicitation charges must be vacated. The question is whether both should be vacated because they formed a single criminal episode or, alternatively, whether they are two separate offenses, only one of which is to be vacated. Compare Hammel v. State, 934 So.2d 634, 635-36 (Fla. 2d DCA 2006) (double jeopardy violation where “[tjhere was no temporal break in the conversation or a change in circumstances to warrant separate charges”) with Hartley v. State, 129 So.3d 486, 490-91 (Fla. 4th DCA 2014) (no double jeopardy “where there were separations of time between each of the crimes charged”).

On this record, which includes only the charging document, it is dubious that the two solicitation charges are part of anything other than a single criminal episode due to their temporal propinquity. See Hughes v. State, 201 So.3d 1230 (Fla. 5th DCA Oct. 21, 2016) (compiling cases). The arrest report presents the email and text exchanges as one continuous communication occurring around and just after midnight; Littleman traveled hours later to the location at which the liaison was to occur.

But the constitution doesn’t prohibit “multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments.” McKinney v. State, 66 So.3d 852, 854 (Fla. 2011). In light of this principle, the legislative tie-breaker in this case is the sentence at the end of section 847.0135(3), which states: “Each separate use of a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission wherein an offense described in this section is committed may be charged as a separate offense.” Though the import of this sentence is to authorize punishment for each separately charged offense, it is unclear whether it applies to both subsections (a) (soliciting minors) and (b) (soliciting parent/guardian/custodian) or to only subsection (b) to which it is directly attached. The Second District in its .Shelley decision implied the latter, saying that the sentence “is an explicit statement of the legislature’s intent to authorize multiple punishments for each violation of section 847.0135(3)(⅞).” Shelley v. State, 134 So.3d 1138, 1140 (Fla. 2d. DCA 2014) (emphasis added), approved, 176 So.3d 914 (Fla. 2015). The Florida Supreme Court in Shelley, however, did not explicitly, limit the sentence to subsection (b), but likewise did not explicitly include, subsection (a); instead, it said that the “statement pertains only to charging solicitation offenses” in subsection (3) without further elucidation. 176 So.3d at 919. Of course, this statement does not apply to traveling violations under subsection (4), which has no similar statement as to the viability of separate offenses. Id.

The most reasonable conclusion, based on the structure of subsection (3), is that the statement applies to both (a) and (b), thereby providing legislative authorization for separate punishments for persons who solicit children (or those believed. to be children) and who solicit parent/guardian/custodian (or those believed to be a parent/guardian/custodian), even if the solicitations are part of a single criminal episode—as they appear to be here. Even though Littleman’s two electronic communications were .a part of single criminal episode with a detective playing the roles of a child and her uncle, the legislature has determined that both are separately punishable, one of which must be vacated under Shelley. 
      
      . The State did not object to the downward departure.
     
      
      . Although the text messages referred to multiple distinct unlawful sexual acts, the State did not take the position in this case that the text messages could support multiple solicitation convictions. Accordingly, for purposes of analyzing Appellant’s double jeopardy claim, we treat all of the text messages as a single act of solicitation.
     
      
      . It does not matter which one of the solicitation convictions the trial court vacates because they were both scored the same on Appellant’s scoresheet and it is clear from the trial court’s comments at the sentencing hearing that Appellant was going to receive the same overall sentence irrespective of the number of solicitation convictions. Cf. Brooks v. State, 969 So.2d 238, 241-42 (Fla. 2007) (scoresheet error is harmless on direct appeal when the record conclusively shows that trial court would have imposed the same sentence).
     