Registrants in Florida Continue to Find Relief from Double Jeopardy Under Shelley
Add Kania to the list of cases where individuals convicted of online solicitation offenses had their “associated” charges dismissed on double jeopardy grounds.
Last week, the 2nd DCA threw out the “unlawful use of a two-way communications device” conviction of a defendant who was also convicted of traveling to meet a minor in 2012, finding that it was part of the same conduct and to be convicted of both would violate Double Jeopardy.
The court’s opinion mentioned that the lower court already recognized that it could not charge him with both traveling to meet a minor and use of a computer to solicit (because of Shelley), but here the Court further prevented the “use of a two-way communications device”.
In lay terms; prosecutors have been tacking on multiple criminal offenses arising from the same course of conduct. Caught in a sting? That’s one crime for online solicitation, one crime for traveling to meet, one crime for use of a two-way communication device, etc… Courts are catching on that if it’s all arising from the same course of conduct it can’t be three separate crimes, otherwise it’s double jeopardy.
If you are facing charges, make sure your attorney is aware of these decisions. If you are currently serving a sentence speak to your attorney (FAC is not a law firm, don’t ask us about your case) to see whether you would be entitled to any post-conviction relief.
Two things of note:
– If you’ve accepted a “negotiated plea” , meaning there was an agreement between your attorney and the prosecutor regarding the punishment, the State will rely on the Novaton case where it basically says that you accepted a plea sucker and now you’re stuck with it. That case completely disregards any constitutional issue.
– The Shelley caselaw goes by the date of your charge. If you are unsure about this I highly recommended you read the Shelley case as well as speak to an attorney. Educate yourself. Don’t rely exclusively on an attorney (or the intern that will most likely work on your case) .
Also, if you were sentenced to multiple charges that amounted to double jeopardy you can apply for a “certificate of eligibility ” from the FDLE. It will cost around 75 dollars. I believe you can pursue this course of action once the sentence has ended. If successful it will remove any charges that are deemed to be double jeopardy from your record.
Oh, the State knows about the double jeopardy issues yet still try to get the charges to stick OR they will “offer” to drop certain charges as part of a plea.
Horse trading at its finest.
The main problem is you are told if you don’t plea down, you will by punished twice as hard if you lose at trail. Because the average person can not hold their own against a skilled prosecutor means conviction, more time, and a worse situation.
Truth. Most guilty verdicts are the result of accepting a plea offer. In fact, 95% of all cases in a state level and 97.5% on the federal level. This is not a system of trials, but of plea negotiations.
Correct. Most of us have heard; “If you go to trial they will charge you with X + Y + Z and you’re facing 20 years in prison. Even though you have never been arrested before and this is a first time, non violent offense, the prosecutor said they want to make an example of you… OR… you can plead guilty, they will knock out a couple of counts, you’ll do the statutory minimum, and you’ll put this behind you.”
Seemed like a good deal at the time.
This happened to me. I was told at my first court date (after first appearance), that I would be facing 75 years if I went to trial. Since I’ve never heard of a “sex offender” winning at trial, I took a plea “deal.” I didn’t realize at the time that being put on the registry was a living death sentence.
so if the state had you charged with 2 or 3 charges and you accepted a plea deal you’re screwed even though the state coerced you into a plea deal under duress that if you don’t take it we are going to trial on all these charges? SICK
I don’t know about other States, but it’s is extremely common for a single illegal act to be met with multipe criminal charges.
For example: A felon with a gun would be charged with a crime of possing a firearm by a prohibited person. They would also add the charge of being previously convicted of a felony, “enhancing” the origional charge. If the gun was found in a vehicle, they’d also charge seperately for the gun being in a car. If the person was ever in prison, they would also get another charge to enhance possible.
And then there’s the 3 strikes law. The first felony can result in a strike. The second felony ends up being 2 strikes for a total of 3 strikes in two convictions, regardless of the number of charges a person receives.
I see this CONSTANTLY in my hometown of Crescent City, California. I don’t know where it happens, but I imagine everywhere.
Cops always stack charges to make sure you don’t get off if you go to trial, that you go down for atleast one charge. It also gives them more leverage in plea deals, making people think they are getting a break. Law enforcement needs to be curtailed.
Exactly and this practice of stacking charges is illegal and violates due process. If a plea was signed as the result of charge stacking that plea is null and void because it was involuntary as the result of illegal charges to force the plea.
I plead guilty in 2005 to one count of L &L Exhibition and one count of L & L Conduct upon one victim. Could I get one dismissed based on Double Jeopardy?
FAC is not a law firm, we are not licensed nor qualified to provide legal advise or opinions. You will need to speak with your attorney. If you do not have an attorney, we have attorney referrals on our site.
Now if we could got convictions based on law enforcement using adult websites for entrapment purposes thrown out too. Seems ironic that the government wants victims to be able to successfully sue sites like craigslist or backpage so they take away the sites first amendment protection but they are the one’s adding to the problem by violating the sites terms of service . sorta like going into a liquor store and offering to sell a patron drugs
I know what you mean. I was in a yahoo adult chat room in 2007. Yahoo had you sign in twice to state legally than you were an adult and to covet their ass. I told my public defender about it and that it was entrapment. I even have the chats archived showing I was approached first by them, they sent the first instant message not me. I was one of the first people in the state of Florida to be arrested at home rather than a meeting place because I quit communications.
Try this on for size they initiated contact with me not once not twice but four times I never reached out to them
I am currently trying to organize a class action lawsuit against the Department of Justice for violations of the Computer Fraud and Abuse Act among others like fraud and wire fraud. These operations are governed by Operational and Investigative Standards and other protocols but are deliberately being ignored by police and the DOJ to make money by framing men as child predators. One of these protocols, or mandates if you will, is that LE are not supposed to use adult websites which they have always done and didn’t admit it until recently. Basically, the cause of action is that LE and the DOJ Nationwide are the ones actually breaking the law and pinning it on innocent men. We need to get plaintiffs like yourself together and others that have recently been arrested but not illegally convicted yet.
after reading this I have just asked my lawyer to get a copy of the signed agreement with craigslist. my son was found guilty but has not yet been sentenced so there may still be time….
Hi James, have you moved forward in class action lawsuit?
THIS MEMORANDUM FOR PROPER TACTICS AND RULES OF ENGAGEMENT IS ACCORDING TO THE UNITED STATES DEPARTMENT OF JUSTICE FEDERAL TRAINING MANUAL FOR THE INTERNET CRIMES AGAINST CHILDREN TASK FORCE UNDERCOVER ONLINE CHAT TRAINING COURSE AND THE FOLLOWING RULES ARE MANDATED:
1.) LAW ENFORCEMENT OFFICERS SHALL NOT USE AND ARE PROHIBITED FROM USING ONLINE DATING WEBSITES FOR CONSENTING ADULTS.
2.) LAW ENFORCEMENT OFFICERS SHALL NOT USE AND ARE PROHIBITED FROM USING ONLINE INSTANT MESSAGING CHAT ROOMS FOR CONSENTING ADULTS.
3.) LAW ENFORCEMENT OFFICERS SHALL NOT USE AND ARE PROHIBITED FROM USING ADULT PROFILES OF THE AGE OF 18 YEARS OLD AND OLDER ON ONLINE SOCIAL MEDIA/SOCIAL NETWORKING WEBSITES.
4.) LAW ENFORCEMENT OFFICERS ARE ALLOWED TO USE AND SHALL ONLY USE PROFILES OF THE AGE OF 17 YEARS OLD AND YOUNGER ON ONLINE SOCIAL MEDIA/SOCIAL NETWORKING WEBSITES.
5.) LAW ENFORCEMENT OFFICERS WHEN SETTING UP AN ONLINE INTERNET UNDERCOVER STING OPERATION ARE MANDATED TO ASK FOR PERMISSION IN WRITING VIA A COOPERATIVE AGREEMENT TO SAID SOCIAL MEDIA/SOCIAL NETWORKING WEBSITE’S LEGAL COUNSEL/LEGAL TEAM FOR THE EXPRESS PURPOSE OF CONDUCTING SAID ONLINE INTERNET UNDERCOVER STING OPERATION AND IF NOT DONE SO THEY WOULD BE IN VIOLATION OF THE FEDERAL COMPUTER FRAUD AND ABUSE ACT.
SOURCE: OFFICE OF THE ATTORNEY GENERAL OF THE UNITED STATES, UNITED STATES DEPARTMENT OF JUSTICE.
How can I find this training manual?
When was this added to the training manual? I was entrapped in 2007. Was in an adult chatroom on Yahoo (you had to sign in twice to cover Yahoos ass to show you were an adult). While in chatroom I was instant messaged by a person in the room. They made first contact. We chatted off and on for 3 months. Towards the end of the 3 month period she started telling me she was 15 and wanted to meet. Now we met in an adult chat room and I thought she was playing around cause I told told her I was seeing a 19 year old. On the day I was supposed to meet her I left work paid some bills and went home. 2 weeks later I was arrested at my house charged with 5 counts of using a computer to solicit and 4 counts of using a computers webcam. Wasn’t charged with even attempt. So if the rule in this manual is correct the officers violated it by instant messaging me from an adult chat room.