Weeks v. State

Decision Date27 March 2020
Docket NumberCase No. 5D18-3612
Citation292 So.3d 1251
Parties Kimberle WEEKS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Kevin J. Kulik, Fort Lauderdale, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Kimberle Weeks appeals her convictions for seven counts of unlawfully intercepting wire communications and one count of disclosing an unlawfully intercepted wire communication. We conclude that double jeopardy principles preclude convictions on four counts of unlawful interception of wire communications, but otherwise we affirm.1

Section 934.03(1)(a), Florida Statutes (2014), makes it a crime for any person to intercept "any wire, oral, or electronic communication." The proper analysis of this statute’s application in the instant case requires a review of certain statutory definitions. "Intercept" means "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." § 934.02(3), Fla. Stat. (2014). "Wire communication" is defined in section 934.02(1) to mean "any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception ...."2 " ‘Aural transfer’ means a transfer containing the human voice at any point between and including the point of origin and the point of reception." § 934.02(18), Fla. Stat. (2014).

Here, the State’s evidence established that, without the knowledge or consent of the other participants, Weeks recorded three separate phone conversations. One phone conversation was a conference call with four other individuals, a second phone conversation involved two other individuals, and a third call was a phone call with a single individual. The State’s evidence was sufficient to show that on these three occasions, Weeks intercepted wire communications in violation of section 934.03(1)(a), Florida Statutes (2014). See, e.g. , Briggs v. Am. Air Filter Co., 630 F.2d 414, 417 (5th Cir. 1980) (concluding that "[a] telephone conversation is a wire communication" under same definition of wire communication in federal wiretap statute); Perdue v. State , 78 So. 3d 712, 716 (Fla. 1st DCA 2012) ("[T]he recording ... included only the communications that were picked up over the telephone, which clearly meet the definition of ‘wire communication’ in section 934.02(1).").3

Weeks argues that because there were only three recorded telephone calls, double jeopardy principles preclude her from being convicted of more than three counts of unlawfully intercepting wire communications. In response, the State argues that because Weeks unlawfully intercepted communications of seven different individuals, she can be convicted on seven counts. We reject the State’s argument.

In cases involving multiple violations of the same statute, courts apply the "allowable unit of prosecution" standard to determine whether a double jeopardy violation has occurred. McKnight v. State , 906 So. 2d 368, 371 (Fla. 5th DCA 2005) (citing Sanabria v. United States , 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) ).

The "allowable unit of prosecution" standard recognizes that the Double Jeopardy Clauses are offended if multiple punishments are imposed for the same offense. The Legislature defines whether offenses are the same by prescribing the "allowable unit of prosecution," which is the aspect of criminal activity that the Legislature intended to punish. See United States v. Chipps , 410 F.3d 438 (8th Cir. 2005). In other words, it is a distinguishable discrete act that is a separate violation of the statute.

McKnight , 906 So. 2d at 371.

"A court’s determination of the meaning of a statute begins with the language of the statute." Halifax Hosp. Med. Ctr. v. State , 278 So. 3d 545, 547 (Fla. 2019) (citing Lopez v. Hall , 233 So. 3d 451, 453 (Fla. 2018) ). "If that language is clear, the statute is given its plain meaning, and the court does not ‘look behind the statute’s plain language for legislative intent or resort to rules of statutory construction.’ " Id . (quoting City of Parker v. State , 992 So. 2d 171, 176 (Fla. 2008) ). Section 934.03(1)(a) states, in pertinent part, that any person who "[i]ntentionally intercepts ... any wire ... communication ... shall be punished." The statutory definition of "wire communication" references "any aural transfer" made through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection. § 934.02(1), Fla. Stat. (2014). "Aural transfer" is defined as "a transfer containing the human voice." § 934.02(18), Fla. Stat. (2014) (emphasis added). Significantly, these definitions make no reference to the number of people participating in a wire communication. Thus, we find no statutory support for the State’s argument that the allowable unit of prosecution is determined by the number of individuals whose voices were unlawfully recorded on a single telephone call.4 On remand, the trial court shall enter judgment and sentence against Weeks on only three counts of unlawfully intercepting wire communications in addition to the one count of disclosing unlawfully intercepted wire communication.

AFFIRMED, in...

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2 books & journal articles
  • Pretrial motions and defenses
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • 30 Abril 2021
    ...a conference call with multiple people on the line, defendant could only be charged per call, not per voice per call. Weeks v. State, 292 So. 3d 1251 (Fla. 5th DCA 2020) Defendant was convicted on lewd or lascivious molestation charges that violated §800.04(5) and §800.04(6). The appellate ......
  • Crimes
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • 30 Abril 2021
    ...a conference call with multiple people on the line, defendant could only be charged per call, not per voice per call. Weeks v. State, 292 So. 3d 1251 (Fla. 5th DCA 2020) Use of personal identification of another Consent for the use of another person’s identification information is a defense......

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