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Using Double Jeopardy to Fight Multiple Child Sex Crime Charges

Florida law contains dozens of crimes that punish defendants from pursuing or soliciting sex with minors. Many of these crimes share similar elements. This means that prosecutors can often charge defendants with multiple crimes for the same incident, dramatically increasing their potential sentence. The Double Jeopardy Clause of the Fifth Amendment prohibits criminal defendants from facing multiple charges for the same crime. 

Last year, the Florida Supreme Court made the practice of double charging harder for these crimes in a case called State v. Shelly. The Court examined two statutes: Fla. Stat. 847.0135(3), which prohibits using a computer to solicit a child for unlawful sexual conduct, and Fla. Stat. 847.0123(4)(a), which prohibits traveling to meet a child to engage in unlawful sexual conduct. The Court held that charging a defendant with both crimes for one incident violated the Double Jeopardy clause. The court applied the Blockburger test, which says that two crimes constitute different offenses where both offenses require proof of an act that the other does not. The Court in Shelly found that all the elements of soliciting a minor also appeared in traveling after solicitation. So, if the state charges a defendant with traveling after solicitation, they cannot also charge him with solicitation for the same incident.

The Florida Supreme Court's decision has not stopped prosecutors from charging defendants with both solicitation and traveling to solicit minors. In a decision last week by the Fifth District Court of appeal, Hughes v. State, the court shot down such an attempt. Hughes involved a defendant who was charged solicitation and traveling after solicitation when he responded to an ad the "Casual Encounters" section on Craigslist. A an undercover detective posing as a fourteen-year-old girl actually posted the ad. The defendant agreed to meet the detective at a steakhouse. The two delayed the meeting until the next day because the defendant had to go to work for 14 hours.

The state argued that charging the defendant with both crimes did not violate the Double Jeopardy clause because of the seventeen-hour gap between the communication and the travel. The court disagreed. It found that both the initial communication and the travel the next day were all part of the same offense. It also found that the incidents could have occurred closer together had circumstances been slightly different.

Those accused of sex crimes often find themselves facing lengthy indictments or informations. In such situations, a defendant's sentence exposure can be dramatically reduced even before trial by dismissing duplicate counts. Hughes shows that the Double Jeopardy Clause is a powerful tool against lengthy sentences in child sex crime cases.

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
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Jacksonville, FL 32202

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