Holt v. State

• Decision Date: 14 August 2015
• Docket Number: No. 5D14–3269.,5D14–3269.
• Citation: 173 So.3d 1079
• Parties: Christopher Daniel HOLT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

173 So.3d 1079

Christopher Daniel HOLT, Appellant
v.
STATE of Florida, Appellee.

No. 5D14–3269.

District Court of Appeal of Florida, Fifth District.

Aug. 14, 2015.

173 So.3d 1080

James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

Opinion

LAMBERT, J.

Following a jury trial, Christopher Holt was convicted of using a computer to seduce, solicit, or lure a child; unlawful use of a two-way communications device to commit a felony; and traveling to meet a minor after use of a computer to solicit a child. Subsequent to trial, the State dismissed the charge of using a computer to seduce, solicit, or lure a child. Holt timely appealed his convictions on the remaining two counts and raises two issues on appeal. We affirm with respect to the first issue without further comment. In his second issue, Holt argues that his convictions for traveling to meet a minor under

173 So.3d 1081

section 847.0135(4)(a), Florida Statutes (2013), and unlawful use of a two-way communications device under section 934.215, Florida Statutes (2013), violate double jeopardy because they were a part of the same criminal episode and the elements to prove unlawful use of a two-way communications device are subsumed within the elements for traveling to meet a minor. We agree and vacate Holt's conviction and sentence for unlawful use of a two-way communications device.

On March 14, 2013, Holt communicated with another person on an Internet-dating site, learned that the person was purportedly 13 years old, continued to communicate with that person through telephonic text messages, and then traveled to meet the person for the purpose of having sex. The “minor” was actually a detective with the Gainesville Police Department, and Holt was apprehended when he arrived at a pre-arranged location where the detective was waiting.

“A double jeopardy claim based on undisputed facts presents a pure question of law and is reviewed de novo.” Bailey v. State, 21 So.3d 147, 149 (Fla. 5th DCA 2009) (citing Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) ). Though Holt did not raise the alleged double jeopardy violation with the trial court, because a violation of a defendant's substantive double jeopardy rights constitutes fundamental error, it may be raised for the first time on appeal. See Johnson v. State, 460 So.2d 954, 958 (Fla. 5th DCA 1984), approved, 483 So.2d 420 (Fla.1986).

Here, the State charged a single count of unlawful use of a two-way communications device and a single count of traveling to meet a minor. The information alleged that each offense occurred “on or about March 14, 2013.” Neither the charging information nor the jury verdict form included language clearly predicating the disputed charges on two distinct acts. As a result, the State charged the offenses as occurring during a single criminal episode, and we may not assume that they were predicated on distinct acts. See Mizner v. State, 154 So.3d 391, 400 (Fla. 2d DCA 2014) ; Partch v. State, 43 So.3d 758, 761–62 (Fla. 1st DCA 2010).

In determining whether multiple convictions and sentences for offenses arising from the same criminal transaction violate double jeopardy principles, “the dispositive question is whether the legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 744 So.2d 1112, 1113–14 (Fla. 5th DCA 1999) (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) ), approved and remanded, 780 So.2d 17 (Fla.2001). When the legislative intent is not clear from the statute, the court must determine whether separate punishments for the two convictions violate the Blockburger test,¹ as codified in section 775.021(4), Florida Statutes (2013). Valdes v. State, 3 So.3d 1067, 1070 (Fla.2009). “The Blockburger test ... inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution.” Gordon, 744 So.2d at 1114.

Section 847.0135(4), Florida Statutes, criminalizes traveling to meet a minor for the purpose of engaging in sexual intercourse after using a computer to solicit the child. It provides:

(4) TRAVELING TO MEET A MINOR.—Any person who travels any distance either within this state, to this state, or from this state by any means,

173 So.3d 1082

who attempts to do so, or who causes another to do so or to attempt to do so for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device

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