Filing # 12384952 Electronically Filed 04/10/2014 05:37:23 PM

RECEIVED, 4/10/2014 17:38:37, John A. Tomasino, Clerk, Supreme Court

IN THE SUPREME COURT OF FLORIDA

MICHAEL LEE,CASE NO. SC14-534

Petitioner, DCA NO. 5D12-4793

vs.

STATE OF FLORIDA,

Respondent.

PETITIONER'S BRIEF ON JURISDICTION

On Petition for Discretionary ReviewFrom the District of Appeal of

Florida, Fifth District

WILLIAM R. PONALLSNURE & PONALL, P.A.425 W. New England Ave., Ste. 200Winter Park, FL 32789Telephone: (407) 469-6200Fax: (407) 645-0805Florida Bar No. 421634

MATTHEW P. FERRYLAW OFFICES OF WARREN W. LINDSEY1150 Louisiana AvenueSuite 2Winter Park, Florida 32789Telephone: (407) 644-4044Fax: (407) 599-2207Florida Bar No. 28950

Attorneys for Petitioner

TABLE OF CONTENTS

PAGE

TABLE OF CITATIONS iii

STATEMENT OF CASE AND FACTS 1

SUMMARY OF ARGUMENT 2

ARGUMENT 3

THE FIFTH DISTRICT'S DECISION IN THIS CASE EXPRESSLYAND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT ANDA DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THERULES OF STATUTORY CONSTRUCTION

CONCLUSION 7

CERTIFICATE OF SERVICE 7

DESIGNATION OF EMAIL ADDRESSES 8

CERTIFICATE OF COMPLIANCE 8

11

TABLE OF CITATIONS

CASES PAGE(S)

Mendenhall v. State, 48 So.3d 740 (Fla. 2010) ............. 3,4,7

Florida Dep't of Environmental Protection v.Contractpoint Florida Parks, LLC, et al., 986 So.2d 1260(Fla. 2008) ................................................. 3,7State v. Gonzalez, 121 So.3d 625 (Fla. 4th DCA 2013) ...... 3,4-7

State v. Wilson, 128 So.3d 946 (Fla. 5th DCA 2013) ...... 1,3-4,6

111

STATEMENT OF CASE AND FACTS

Michael Lee ("Mr. Lee") was charged by Amended Information

with Solicitation of a Minor Via Computer, in violation of Fla.

Stat. § 847,0135(3)(a), and Traveling to Meet a Minor, in

violation of Fla. Stat. § 847.0135(4)(a). (Appendix A at 1).

Mr. Lee filed a Motion to Dismiss the Information pursuant

to Fla. R. Crim. P. 3.190(c)(4). The trial court dismissed both

charges because the undisputed evidence showed that Mr. Lee did

not have any direct communication with the law enforcement

officer posing as an imaginary minor in this case. (Appendix A

at 2)

On appeal, the Fifth District concluded as follows:

The trial court granted Lee's dismissalmotion based on Lee's argument that adefendant could not be convicted under thestatute unless there was direct communicationbetween the defendant and a child or personbelieved by the defendant to be a child. Werecently rejected that argument in State v.Wilson, 39 Fla. L. Weekly D41 (Fla. 5th DCA2013). For the reasons articulated inWilson, we reverse the instant order, andremand for further proceedings consistentwith this opinion.

(Appendix A at 2) .

1

SUMMARY OF ARGUMENT

The decision of the Fifth District Court of Appeal in this

case directly and expressly conflicts with both decisions of this

Court and a decision of another district court of appeal. In

reaching its decision regarding the construction of Fla. Stat.

§§ 847.0135(3)(a) and (4)(a), the Fifth District completely

failed to employ the rules of statutory construction discussed in

those decisions.

2

ARGUMENT

THE FIFTH DISTRICT' S DECISION IN THIS CASE EXPRESSLYAND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT ANDA DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THERULES OF STATUTORY CONSTRUCTION

Mr. Lee seeks this Court's discretionary review of a

decision rendered by the Fifth District Court of Appeal. The

Fifth District's decision, which relied exclusively on its

previous decision in State v. Wilson, 128 So.3d 946 (Fla. 5th DCA

2013), is in express and direct conflict with the decisions of

this Court in Mendenhall v. State, 48 So.3d 740, 749 (Fla. 2010),

and Florida Dep' t of Environmental Protection v. Contractpoint

Florida Parks LLC, et al., 986 So.2d 1260 (Fla. 2008), and the

decision of the district court in State v. Gonzalez, 121 So.3d

625 (Fla. 4th DCA 2013).

The State originally charged Mr. Lee with violations of

§§ 847.0135(3) (b) and (4) (b) on the basis that the undercover

officer posing as the aunt was the imaginary niece's legal

guardian or custodian. If that allegation was legally correct,

the conduct in question was specifically addressed in

§§ 847.0135(3) (b) and (4) (b). Under those circumstances, there

is no legal basis to hold that the conduct is also subject to

prosecution under §§ 847.0135(3)(a) and (4)(a).

3

In this case, the Fifth District relied entirely on its

previous decision in Wilson to reverse the trial court' s decision

to dismiss the charges against Mr. Lee. (Appendix A at 2). In

Wilson, the Fifth District held that a decision affirming the

trial court would render the attempt language in

§§ 847.0135(3)(a) and (4)(a) meaningless. However, by applying

that rationale, the Fifth District rendered §§ 847.0135(3) (b) and

(4) (b) meaningless when the only communication is between a

defendant and a person posing as a legal guardian, or custodian.

If §§ 847.0135(3)(a) and (4)(a) already applied to those

situations, there was no need for the Legislature to include the

"legal guardian, " and "custodian" language in §§ 847 . 0135 (3) (b)

and (4) (b) when it added those statutory subsections in 2007.

This Court has held that "significance and effect must be

given to every word, phrase, sentence, and part of the statute if

possible, and words in a statute should not be construed as mere

surplusage." Mendenhall v. State, 48 So.3d 740, 749 (Fla. 2010).

The only way to properly apply the holding in Mendenhall to Mr.

Lee's case is to hold that he is only subject to prosecution

under §§ 847. 0135 (3) (b) and (4 ) (b) . The Fifth District' s holding

to the contrary is in direct and express with Mendenhall.

Additionally, in Wilson, the Fifth District cites Gonzalez

for a proposition which it does not stand for. The Fifth

4

District relied upon that decision to conclude that "[t}he fact

that the legislature chose to directly criminalize conduct in one

subsection of the statute that could also constitute an unlawful

attempt under another subsection of the same statute provides no

basis for ignoring the plain language of either subsection." 128

So.3d at 948-49.

In Gonzalez, the district court held that, as a general

rule, where two statutes govern a defendant's criminal conduct, a

prosecutor has the discretion to decide whether and how to

prosecute a defendant. The district court relied upon that rule

to conclude that a medical doctor could be charged with the

general offense of drug trafficking (§ 893.135(1) (c)) despite the

fact that there was a more specific offense addressing illicit

conduct by a prescribing medical practitioner (§ 893.13(8)). 121

So.3d at 629.

However, the district court only reached that conclusion in

Gonzalez after applying the doctrine of in pari materia to the

two different statutes in an effort to harmonize them as part of

a coherent statutory scheme. 121 So.3d at 632 (doctrine of in

pari materia applies even where language of statute conveys a

clear and definite meaning). After applying that doctrine, the

district court held that the State was permitted to charge a

doctor with the first-degree felony offense of drug trafficking

5

in § 893.135(1)(c) instead of the second and third-degree

offenses contained in § 893.13(8) because the statutory scheme

made it clear that the Legislature intended more severe penalties

for offenses involving larger trafficking amounts of drugs. Id.

Here, in both Mr. Lee's case and in Wilson, the Fifth

District completely failed to apply the doctrine of in pari

materia when considering the interplay between §§ 847.0135(3)(a)

and (4) (a) and §§ 847.0135(3) (b) and (4) (b). Unlike the

different statutes at issue in Gonzalez, both §§ 847.0135(3)(a)

and (3) (b) are third degree felonies. Likewise, both

§§ 847.0135(4) (a) and (4) (b) are second degree felonies. The

fact that the same penalty applies for the two offenses described

in subsections (a) and the two offenses described in subsection

(b) indicates that the Legislature established a coherent

statutory scheme designed to criminalize and penalize similar

conduct that was committed either directly with a child (§§

847.0135(3)(a) and (4)(a)), or through a designated intermediary

(§§ 847.0135(3)(b) and (4) (b)). It does not indicate that

conduct specifically covered under §§ 847.0135(3) (b) and (4) (b)

is also subject to prosecution under §§ 847.0135(3)(a) and

(4)(a). Accordingly, the decision of the Fifth District in

this case is also in direct and express with Gonzalez.

6

Finally, the Fifth District's failure to apply the doctrine

of in pari materia is not only contrary to Gonzalez, but is also

contrary to this Court's previous decision in Contractpoint

Florida Parks, In that case, this Court held that statutory

subsections cannot be read in isolation. "[I]f part of a statute

appears to have a clear meaning if considered alone, but when

that meaning is inconsistent with other parts of the same statute

or in pari materia, the court will examine the entire act and

those others in pari materia in order to ascertain the overall

legislative intent." 986 So.2d at 1265-66.

Therefore, the decision of the Fifth District in this case

is in express and direct conflict with Mendenhall, Gonzalez, and

Contractpoint Florida Parks, because it failed to employ the

rules of statutory construction discussed in those decisions.

Therefore7 this Court should accept jurisdiction and address this

case on the merits.

CONCLUSION

For the aforementioned reasons, this Court should accept

jurisdiction, address the merits of the instant case, and resolve

the conflict described above.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been

furnished by email delivery to Kristen L. Davenport, Assistant

Attorney General, 444 Seabreeze Blvd., 5th Floor, Daytona Beach,

7

FL 32118, crimappdab@myfloridalegal.com, on this 10th day of

April, 2014.

/s/ William R. PonallWILLIAM R. PONALLFlorida Bar No. 421634

/s/ Matthew P. FerryMATTHEW P. FERRYFlorida Bar No. 28950

DESIGNATION OF EMAIL ADDRESSES

Pursuant to Fla. R. Jud. Admin. 2.516, Attorney William R.

Ponall hereby designates ponallb@criminaldefenselaw.com as his

primary email address and gallaherb@criminaldefenselaw.com as his

secondary email address.

Attorney Matthew Ferry designates matt@warrenlindseylaw.com

as his primary address and dee@warrenlindsevlaw.com as his

secondary email address.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Courier New

12-point font and thereby complies with the font requirements of

Fla. R. App. P. 9.210(a)(2).

/s/ William R. PonallWILLIAM R. PONALLFlorida Bar No. 421634

/s/ Matthew P. FerryMATTHEW P. FERRYFlorida Bar No. 28950

8

APPENDIX

A. Opinion of Fifth DCA - January 24, 2014

9

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT

NOT FINAL UNTIL TIME EXPlRES TOFILE MOTION FOR REHEARING ANDDISPOSITION THEREOF IF FILED

STATE OF FLORIDA,

Appellant,

v. Case No. 5D12-4793

MICHAEL LEE,

Appellee.

Opinion filed January 24, 2014

Appeal from the Circuit Courtfor Orange County,Alan S. Apte, Judge.

Pamela Jo Bondi, Attorney General,Tallahassee, and Kristen L. Davenport,Assistant Attorney General, DaytonaBeach, for Appellant.

William R. Ponall, of Snure & Ponall, P.A.,Winter Park and Matthew P. Ferry, of LawOffices of Warren W. Lindsey, WinterPark, for Appellee.

EVANDER, J.

The State appeals the trial court's order granting Michael Lee's motion to dismiss

the amended information that charged him with attempting to solicit a minor for sexual

activity using an electronic device or internet server,¹ and traveling to meet a minor for

¹ § 847.0135(3)(a), Fla. Stat. (2011).

unlawful sexual activity after first using an electronic device or internet service to

attempt to solicit the minor.2 We reverse.

The trial court granted Lee's dismissal motion based on Lee's argument that a

defendant could not be convicted under the statute unless there was direct

communication between the defendant and a child or person believed by the defendant

to be a child. We recently rejected this argument in State v. Wilson, 39 Fla. L. Weekly

D41 (Fla. 5th DCA 2013). For the reasons articulated in Wilson, we reverse the instant

order, and remand for further proceedings consistent with this opinion.

REVERSEDand REMANDED.

COHEN and WALLIS, JJ., concur.

2 § 847.0135(4)(a), Fla. Stat. (2011).

2