Alan Lynsdale Hamilton v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ALAN LYNSDALE HAMILTON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-5380
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed May 27, 2015.
An appeal from the Circuit Court for Escambia County.
J. Scott Duncan, Judge.
Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Alan Hamilton raises four issues on appeal. We find merit only in his claim
that convictions for traveling to meet a minor under section 847.0135(4), Florida
Statutes (2013), and unlawful use of a two-way communications device under
section 934.215, Florida Statutes (2013), violate double jeopardy, and therefore
vacate his judgment and sentence for unlawful use of a two-way communications
device. We affirm appellant’s conviction for traveling to meet a minor in case no.
12-CF-2256 and his other convictions in case nos. 12-CF-2740, 12-CF-2788, and
12-CF-3347, but remand for resentencing on a scoresheet that reflects his
conviction for unlawful use of a two-way communications device has been
vacated.
The evidence at appellant’s non-jury trial showed that, over three to four
days in May of 2012, appellant used his cell phone to communicate with an
undercover law enforcement officer, who was posing as a 14-year-old girl named
Jessica. After expressing his wish to engage in sexual conduct to Jessica via text
messages, appellant arranged to meet Jessica at a bowling alley. On May 4, 2012,
appellant drove his vehicle to the bowling alley, approached an undercover officer,
and was arrested.
Appellant argues his dual convictions violate double jeopardy because the
elements of the offense of unlawful use of a two-way communications device are
subsumed within the elements of the offense of traveling to meet a minor, and both
offenses occurred within the same criminal episode. The Second District passed
upon the same question in Mizner v. State, 154 So. 3d 391 (Fla. 2d DCA 2014). In
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Mizner, the court analyzed the elements of each offense, noting that the statute
prohibiting unlawful use of a two-way communications device required the use of
a “‘two-way communications device, including, but not limited to, a portable two-
way wireless communications device, to facilitate or further the commission of any
felony offense.’” Id. at 399. The court further noted that the offense of traveling
to meet a minor, a felony, required the use of “‘a computer online service, Internet
service, local bulletin board service, or any other device capable of electronic data
storage or transmission.’” Id. Thus the court concluded, “the proof of the
unlawful use of a two-way communications device was subsumed within the proof
of the soliciting and traveling offenses in this case,” and vacated the appellant’s
conviction for unlawful use of a two-way communications device. Id. at 399–400.
Like the Mizner court, we note that although appellant’s communication
with the undercover officer “spanned more than one day,” 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. Id. at 400. In addition, the information in the
present case alleged each offense occurred “on or about May 4, 2012.”
Accordingly, “we reject the State’s argument . . . that the evidence could support
convictions for each offense as occurring during a separate criminal episode. The
State did not charge the offenses as occurring during separate criminal episodes;
rather, it charged them as occurring during a single criminal episode.” Id.3
The state relies on our decision in State v. Murphy, 124 So. 3d 323 (Fla. 1st
DCA 2013), to argue that the dual convictions at issue in the present case do not
run afoul of double jeopardy principles. The two offenses at issue in Murphy,
however, are different from the offenses at issue in the present case. In Murphy,
we held that dual convictions for soliciting a person believed to be a parent to
engage in sexual activity with his or her child under section 847.0135(3)(b), and
traveling to meet a minor after soliciting a person believed to be his or her parent
under section 847.0134(4)(b), do not amount to double jeopardy. Id. at 330. In the
present case, appellant was convicted of traveling to meet a minor under section
847.0135(4), and unlawful use of a two-way communications device under section
934.215. Thus, Murphy does not control the outcome of appellant’s case.
Although we are persuaded by the Second District’s double jeopardy
analysis in Mizner, we find additional support for our decision in the present case
from case law analyzing the double jeopardy effect of section 790.07, Florida
Statutes, which prohibits the display, use, or possession of a firearm during the
commission of “any felony.” See Cleveland v. State, 587 So. 2d 1145 (Fla. 1991);
Gracia v. State, 98 So. 3d 1243 (Fla. 3d DCA 2012); Brown v. State, 617 So. 2d
744 (Fla. 1st DCA 1993). In Brown, the appellant was convicted of, among other
things, armed robbery with a firearm and use of a firearm during the commission
of a felony. Id. at 745. After looking at the statutory elements for each offense, we
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concluded “the charge of possession of a firearm during the commission of a
felony does not contain any elements that are distinct from the armed robbery with
a firearm and, since both crimes occurred during the same criminal transaction, the
appellant could not be convicted and sentenced as to both.” Id. at 747.
Similarly, we conclude in the present case that the offense of unlawful use of
a two-way communications device does not contain any elements that are distinct
from the offense of traveling to meet a minor. Because the state did not charge the
offenses as occurring during separate criminal episodes, we must vacate
appellant’s judgment and sentence for unlawful use of a two-way communications
device. See Mizner, 154 So. 3d at 400.
Affirmed in part, vacated in part, and remanded.
BENTON, CLARK, and SWANSON, JJ., CONCUR.
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