Weitz v. State

• Decision Date: 25 October 2017
• Docket Number: Case No. 2D16–4703
• Citation: 229 So.3d 872
• Parties: Joseph WEITZ, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

229 So.3d 872

Joseph WEITZ, Petitioner,
v.
STATE of Florida, Respondent.

Case No. 2D16–4703

District Court of Appeal of Florida, Second District.

Opinion filed October 25, 2017

Joseph Weitz, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

SALARIO, Judge.

Joseph Weitz has filed a petition under Florida Rule of Appellate Procedure 9.141(d) arguing three grounds of ineffective assistance of appellate counsel. We grant relief on ground one, which is based upon Mr. Weitz's assertion that appellate counsel failed to argue that Mr. Weitz's dual convictions for transmitting material harmful to minors under section 847.0138, Florida Statutes (2012), and unlawfully using a two-way communications device under section 934.215, Florida Statutes (2012), violate double jeopardy. We deny grounds two and three without comment.

A jury convicted Mr. Weitz of one count of transmitting material harmful to minors and one count of unlawfully using a two-way communications device. Both counts alleged that Mr. Weitz committed the offenses in Polk County "on or about March 2, 2012." The evidence at trial was that Mr. Weitz engaged in a lengthy series of sexually-explicit text messages with a fourteen-year-old neighbor. The trial court sentenced Mr. Weitz to ten years' imprisonment as a habitual felony offender (HFO) for the transmitting offense and to a concurrent non–HFO sentence of five years' imprisonment for the unlawful use offense. We affirmed his convictions. See Weitz v. State, 196 So.3d 466, 466 (Fla. 2d DCA 2016).

In ground one of his petition, Mr. Weitz argues that his appellate counsel

229 So.3d 874

was ineffective for failing to argue that his convictions violate double jeopardy. Because a double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal, Mizner v. State, 154 So.3d 391, 399 (Fla. 2d DCA 2014), the failure to raise a double jeopardy violation on appeal can constitute ineffective assistance of appellate counsel, see Perri v. State, 154 So.3d 1204, 1205 (Fla. 2d DCA 2015).

To determine whether Mr. Weitz is entitled to relief, we must first ask whether his appellate counsel rendered deficient performance by failing to argue that his dual convictions for unlawful use of a two-way communications device and transmitting harmful material to a minor violate double jeopardy. See Smith v. State, 19 So.3d 417, 418 (Fla. 2d DCA 2009). At the time appellate counsel filed the initial brief in Mr. Weitz's direct appeal, this court had applied the Blockburger ¹ same-elements test to hold that multiple convictions under the two-way communications device statute and three other statutes violate double jeopardy when the charges arise from the same criminal episode. See Exantus v. State, 198 So.3d 1 (Fla. 2d DCA 2014) ; Mizner, 154 So.3d 391. These statutes all involve the use of electronic methods of communication and sexual activity involving minors. In Mizner, we held that convictions for soliciting a parent to consent to sex with a minor in violation of section 847.0135(3)(b), traveling to have sex with a minor in violation of section 847.0135(4)(b), and unlawful use of a two-way...