JOSEPH WEITZ v. STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSEPH WEITZ, DOC #139777, )
)
Appellant, )
)
v. ) Case No. 2D18-72
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed May 31, 2019.
Appeal from the Circuit Court for Polk
County; Reinaldo Ojeda, Judge.
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.
ROTHSTEIN-YOUAKIM, Judge.
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
(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
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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) (holding that
an information's allegations that the unlawful use of a two-way communications device
and the solicitation offense occurred "on one or more occasions between December 22,
2013, and January 1, 2014," did not clearly reflect that the charges relied on separate
conduct). 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:
(a) Whoever, in the course of one criminal transaction or
episode, commits an act or acts which constitute one or
more separate criminal offenses, upon conviction and
adjudication of guilt, shall be sentenced separately for each
criminal offense; and the sentencing judge may order the
sentences to be served concurrently or consecutively. For
the purposes of this subsection, offenses are separate if
each offense requires proof of an element that the other
1Indeed, the statutory language of section 934.28, Florida Statutes (2011),
suggests a legislative intent to the contrary, as it provides that "[t]he remedies and
sanctions described in ss. 934.21-934.27 are the only judicial remedies and sanctions
for violation of those sections." Cf. M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996) (holding
that the legislature "clearly stated its intent to punish possession of a firearm by a minor
in addition to any other firearm-related offenses" by stating that the possession statute
is " 'supplemental to all other provisions of law relating to the possession, use, or
exhibition of a firearm' " (emphasis omitted) (quoting § 790.22(7), Fla. Stat. (Supp.
1994))).
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does not, without regard to the accusatory pleading or the
proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence
for each criminal offense committed in the course of one
criminal episode or transaction and not to allow the principle
of lenity . . . to determine legislative intent. Exceptions to
this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as
provided by statute.
3. Offenses which are lesser offenses the statutory
elements of which are subsumed by the greater offense.
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) ("[T]he plain language of section
775.021(4)(a) . . . requires that the elements of the offenses be compared 'without
regard to the accusatory pleading or the proof adduced at trial.' "); State v. Carpenter,
417 So. 2d 986, 988 (Fla. 1982) ("In applying the Blockburger test the courts look only
to the statutory elements of each offense and not to the actual evidence to be presented
at trial or the facts as alleged in a particular information." (citing Whalen v. United
States, 445 U.S. 684, 685 n.8 (1980))).
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
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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
2For example, under the plain language of section 934.215, one could be
convicted of violating that statute by trading new cellular telephones for illegal drugs.
Cf. Smith v. United States, 508 U.S. 223, 228-29 (1993) (holding that exchanging a
firearm for narcotics constitutes "use" of a firearm "in relation to" a drug trafficking crime
because the firearm was actively employed, albeit not as a weapon, and was integral to
the transaction).
3Because "[l]esser included offenses are determined based on the
elements of the offenses, not on the penalties attached," Carle v. State, 983 So. 2d 693,
695 (Fla. 1st DCA 2008), it does not matter that offenses under both section
847.0138(2) and section 934.215 are third-degree felonies.
4InValdes, 3 So. 3d at 1077, the supreme court receded from language in
Paul, Florida, and Gordon v. State, 780 So. 2d 17 (Fla. 2001), regarding how to analyze
the exception in section 775.021(4)(b)(2). Valdes does not address the exception in
section 775.021(4)(b)(3), so the analysis of that exception in Paul and Florida remains
good law.
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Boland v. State, 893 So. 2d 683, 685-86 (Fla. 2d DCA 2005) ("A necessarily lesser
included offense is one in which 'the burden of proof of the major crime cannot be
discharged, without proving the lesser crime as an essential link in the chain of
evidence.' Stated another way, a crime 'is a necessarily lesser included offense if,
based on the statutes themselves, a defendant cannot possibly avoid committing the
offense when the other crime in question is perpetrated.' " (citation omitted) (quoting
Overway v. State, 718 So. 2d 308, 310 (Fla. 5th DCA 1998))).
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":
5We note that a violation of section 934.215 is not listed as a lesser
included offense in the standard jury instruction for section 847.0138(2), see Fla. Std.
Jury Instr. (Crim.) 11.21, but "the Schedule of Lesser Included Offenses included in the
Florida Standard Jury Instructions is not the final authority on lesser included offenses,"
Williams v. State, 957 So. 2d 595, 599 (Fla. 2007).
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n. . . . 1 a thing devised; plan; scheme, esp., a sly or
underhanded scheme; trick 2 a mechanical invention or
contrivance for some specific purpose 3 something used to
gain an artistic effect [rhetorical devices] 4 an ornamental
figure or design 5 a design, often with a motto, on a coat of
arms; heraldic emblem 6 any motto or emblem 7 [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) ("We are not at liberty to add words to statutes that were not placed
there by the Legislature."). Section 934.215 prescribes only the directions in which the
communications must travel, not the time they take to get there.
Finally, the State asserts that section 934.215 does require an element
that section 847.0138 does not because it requires that the defendant "knowingly use a
two-way communications device." The State cites no authority for attributing a mens
rea requirement to the use of such a device, and in fact, there is none. See Exantus,
198 So. 3d at 2.
We therefore hold that Weitz's dual convictions for transmitting material
harmful to minors and unlawful use of a two-way communications device violate double
jeopardy because the former subsumes the latter. Accordingly, we vacate Weitz's
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conviction and sentence for unlawfully using a two-way communications device, which
is the lesser of the two offenses. See Shelley, 176 So. 3d at 919-20.
Vacated in part.
NORTHCUTT and MORRIS, JJ., Concur.
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