Appellant raises a double jeopardy challenge under Lee v. State, 258 So. 3d 1297 (Fla. 2018), to his 2014 convictions for traveling to meet a minor for the purpose of engaging in an illegal act and improper use of computer services. The ruling in Lee does not apply retroactively to cases such as Appellants that were already final when Lee was decided. See State v. Glenn, 558 So. 2d 4 (Fla. 1990); Witt v. State, 387 So. 2d 922 (Fla. 1980).
Affirmed.
A key issue in this post-conviction appeal, and one upon which we ordered supplemental briefing, is “whether the Florida Supreme Courts decision in Lee v. State, 258 So. 3d 1297 (2018), applies retroactively.” Lee all but unanimously held, consistent with Justice Polstons unanimous decision in State v. Shelley, 176 So. 3d 914, 916 (Fla. 2015), that the determination of whether multiple convictions for soliciting a minor “are based upon the same conduct for purposes of double jeopardy, the reviewing court may consider only the charging document.” Lee, 258 So. 3d at 1304 (Justice Quince concurred in result only). The States briefing in this case advocates that Lee not be given retroactive effect. Counsel for Dettle withdrew after the supplemental briefing order issued, so no supplemental brief was forthcoming on Dettles behalf, leaving only the States position having been briefed. That said, the principles of Witt v. State, 387 So. 2d 922, 930 (Fla. 1980), and its progeny, suggest that the type of change brought about by Lee is not a “jurisprudential upheaval” and does not fall into the “major” category for which retroactive application in a post-conviction case is warranted. Id. at 927 (“Quite clearly, the main purpose for Rule 3.850 was to provide a method of reviewing a conviction based on a major change of law, where unfairness was so fundamental in either process or substance that the doctrine of finality had to be set aside.”). Shelley and Lee are highly significant cases because both involved the protection of the constitutional right against double jeopardy; but every decision affecting a constitutional right does not automatically make the decision retroactive. Notably, Dettle successfully argued on direct appeal that a double jeopardy violation occurred, Dettle v. State, 218 So. 3d 910 (Fla. 1st DCA 2016), but he did not pursue supreme court review on his Shelley/Lee issue despite the then-existing conflict among the districts, which Lee resolved. See Dettle v. State, 226 So. 3d 285 (Fla. 1st DCA 2017) (Bilbrey, J., dissenting from denial of certification and discussing conflict). Instead, Dettle allowed the mandate to become final and chose to be resentenced thereby making his post-conviction claim less compelling.
On Motion for Rehearing, Rehearing En Banc, and Certification
We deny Appellants motion for rehearing and rehearing en banc. But considering the nature and procedural history of the underlying legal issue and in light of the decisions in Richardson v. State, 301 So. 3d 1014 (Fla. 2d DCA 2019) and Morejon-Medina v. State, 277 So. 3d 1118 (Fla. 2d DCA 2019) we grant Appellants motion to certify a question of great public importance to the Florida Supreme Court. We certify the following question, in accordance with rule 9.030(a)(2)(A)(v) of the Florida Rules of Appellate Procedure, as one of great public importance:
Does the holding in Lee v. State, 258 So. 3d 1297 (Fla. 2018), provide retroactive relief in postconviction proceedings pursuant to Fla. R. Crim. P. 3.850?
Per Curiam.
Lewis and Long, JJ., concur; Makar, J., concurs with opinion.