Weitz v. State
Decision Date | 31 May 2019 |
Docket Number | Case No. 2D18-72 |
Citation | 275 So.3d 707 |
Parties | Joseph WEITZ, DOC #139777, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fort Myers, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
In this appeal of a criminal judgment and sentence following this court's partial grant of Joseph Weitz's petition alleging ineffective assistance of appellate counsel, see Weitz v. State, 229 So. 3d 872, 873 (Fla. 2d DCA 2017), Weitz argues that his dual convictions for unlawfully using a two-way communications device, see § 934.215, Fla. Stat. (2011), and for transmitting material harmful to minors via electronic mail, see § 847.0138(2), Fla. Stat. (2011), violate double jeopardy because the elements of the former are subsumed in the elements of the latter. Upon de novo review of this issue of first impression, see State v. Shelley, 176 So. 3d 914, 918 n.4 (Fla. 2015), we agree with Weitz and vacate his conviction and sentence for unlawfully using a two-way communications device.
The constitutional prohibition against double jeopardy does not preclude multiple punishments for multiple offenses arising out of the same conduct in a single criminal episode if the legislature intends to authorize separate punishments. See Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). Absent a clear statement of legislative intent, when a defendant is convicted of multiple offenses arising out of the same conduct in a single criminal episode, we must determine whether those offenses violate the "same elements" test under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or whether multiple punishments are otherwise precluded under section 775.021(4), Florida Statutes (2011). See Valdes, 3 So. 3d at 1070.
As an initial matter, we must assume that Weitz's convictions arose out of the same conduct in a single criminal episode. The information alleged, in pertinent part, that Weitz, "on or about March 2, 2012, in the County of Polk and State of Florida, did, on one or more occasions know or believe that he was transmitting an [sic] information, or data that was harmful to minors ... to [the victim], known by the defendant to be a minor." The information alleged further that Weitz, "on or about March 2, 2012, in the County of Polk and State of Florida, did, on one or more occasions use a two-way communications device to facilitate or further the commission of a felony, to-wit, Transmitting Material Harmful to Minors." Although both counts allege conduct occurring "on one or more occasions" during the same time period, that language is too ambiguous to allow us to discern whether they were premised on separate conduct. See Lee v. State, 258 So. 3d 1297, 1303-04 (Fla. 2018) ( ). Consequently, we must assume that they were premised on the same conduct. See id.; Batchelor v. State, 193 So. 3d 1054, 1058-59 (Fla. 2d DCA 2016).
Nothing in either section 934.215 or in section 847.0138(2) explicitly authorizes multiple punishments when the same conduct violates both statutes.1 Accordingly, we look to Blockburger, as codified at section 775.021(4), which provides:
In determining whether each offense requires proof of an element that the other does not, we confine our analysis to the statutory elements of each offense without regard to the specific charges or to the evidentiary record. See Roughton v. State, 185 So. 3d 1207, 1210 (Fla. 2016) (); State v. Carpenter, 417 So. 2d 986, 988 (Fla. 1982) .
The elements of section 847.0138(2) are that the defendant (1) knowingly sent an image, information or data that he or she knew or believed to be harmful to minors; (2) sent the image, information, or data to a specific individual who was either actually known by him or her to be a minor or believed by him or her to be a minor; and (3) sent the image, information or data via electronic mail. Fla. Std. Jury Instr. (Crim.) 11.21. The elements of section 934.215 are "(1) the use of a two-way communications device (2) for the purpose of facilitating or furthering the commission of any felony offense." Exantus v. State, 198 So. 3d 1, 2 (Fla. 2d DCA 2014).
Section 934.215 does not require proof that any content was sent to anyone via any mechanism,2 and so section 847.0138(2) requires proof of multiple elements that section 934.215 does not. But Weitz argues that the third exception—that the elements of the lesser offense are subsumed by the elements of the greater, section 775.021(4)(b)(3) —applies because the elements of section 934.215 are subsumed by the elements of section 847.0138(2). That exception "applies only to necessarily lesser included offenses," i.e., "those [offenses] in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial."3
State v. Florida, 894 So. 2d 941, 947 (Fla. 2005), receded from on other grounds by Valdes, 3 So. 3d at 1077 ; see also State v. Paul, 934 So. 2d 1167, 1175 (Fla. 2006) (same), receded from on other grounds by Valdes, 3 So. 3d at 1077 ;4 Boland v. State, 893 So. 2d 683, 685-86 (Fla. 2d DCA 2005) ( .
We agree with Weitz that a violation of section 934.215 is a necessarily lesser included offense of a violation of section 847.0138(2).5 Chapter 934 does not define the term "two-way communications device" for purposes of section 934.215, the term is not used anywhere else within chapter 934, and no case has yet defined it. Nonetheless, we conclude that transmitting an image, information, or data via electronic mail—a mechanism for communication by which images, information, and data can be both sent and received and which includes emails, instant messages, and text messages, see Simmons v. State, 944 So. 2d 317, 325 & n.7, 329 (Fla. 2006) ; Duclos-Lasnier v. State, 192 So. 3d 1234, 1239-41 (Fla. 2d DCA 2016) —necessarily involves the use of a "two-way communications device." We do so based on section 934.215 itself, which provides only a single example of a two-way communications device along with the caveat that such a device is "not limited to" that example, and on the plain meaning of "device":
n. ... a thing devised; plan; scheme, esp., a sly or underhanded scheme; trick a mechanical invention or contrivance for some specific purpose something used to gain an artistic effect [rhetorical devices ] an ornamental figure or design a design, often with a motto, on a coat of arms; heraldic emblem any motto or emblem [Archaic] the act or power of devising --leave to one's own devices to allow to do as one wishes.
Webster's New World College Dictionary 377 (3d ed. 1996) (emphasis added). The second definition most clearly fits here.
Relying on a statute from another state, the State asserts that a two-way communications device transmits in real time and that "electronic mail" does not necessarily contemplate real-time communication. The State, however, identifies nothing in section 934.215 itself or in Florida law in general to support this limitation, and we will not read such a limitation into section 934.215. See Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999) (...
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