Florida/Georgia Personal Injury & Workers Compensation

...Lee was also convicted of unlawful use of a two-way communications device and using a computer to solicit sexual conduct of a child, which are third-degree felonies punishable by up to five years’ imprisonment. §§ 775.082(3)(e), 847.0135(3)(a), 934.215, Fla....

...sexual conduct of a child. 5 Lee, 223 So. 3d at 346. The information alleged that the traveling offense occurred on or about January 2, 2014, and that counts two and three occurred “on 3. § 847.0135(4)(a), Fla. Stat. (2013). 4. § 934.215, Fla....

...Any person who uses 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 commits a felony of the third degree . . . . § 934.215, Fla....

...Likewise, multiple convictions of solicitation, unlawful use of a two-way communications device, and traveling after solicitation based upon the same conduct violate double jeopardy. See Mizner, 154 So. 3d at 399 (concluding that “the unlawful use of a two-way communications device” in section 934.215 “was subsumed within” the offenses of solicitation and traveling after solicitation); Honaker, 199 So....

...We affirm with respect to the first issue without further comment. In his second issue, Holt argues that his convictions for traveling to meet a minor under section *1081 847.0135(4)(a), Florida Statutes (2013), and unlawful use of a two-way communications device under section 934.215, Florida Statutes (2013), violate double jeopardy because they were a part of the same criminal episode and the elements to prove unlawful use of a two-way communications device are subsumed within the elements for traveling to meet a minor....

...hild or person believed by the defendant to be a child, and (4) the defendant seduced, solicited, lured, enticed or attempted to do so to engage in the illegal act or unlawful sexual conduct. Hartley v. State, 129 So.3d 486, 491 (Fla. 4th DCA 2014). Section 934.215, Florida Statutes, criminalizes the use of a two-way communications device to facilitate a felony....

...It provides, “Any person who uses 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 commits a felony of the third degree.... ” § 934.215, Fla....

...Nevertheless, the State argues that section 847.0135(8), Florida Statutes, expresses a legislative intent to permit dual convictions under these two offenses. If true, there is no double jeopardy violation for dual convictions under section 847.0135(4)(a) and section 934.215, despite the fact that the offenses do not satisfy the Blockburger test....

...sentenced on after trial are two entirely different concepts. Therefore, we conclude that section 847.0135(8) does not express a clear legislative intent to authorize dual convictions for violations of section 847.0135 and any other statute, such as section 934.215. To the extent that our dicta in Barnett v. State, 159 So.3d 922 , 925 n. 5 (Fla. 5th DCA 2015), suggests otherwise, we now recede from the dicta. 4 *1084 Accordingly, we find that the dual convictions in this case under section 847.0135(4)(a) and section 934.215, Florida Statutes, violate the Blockburger test and that this violation of double jeopardy amounts to fundamental error....

CLARK, J. Edwin Gennette appeals his conviction and sentence for one count of unlawful use of a two-way communications device to facilitate a felony, in violation of section 934.215, Florida Statutes....

...ntences violate double jeopardy, and his motion to withdraw his plea was improperly denied. We find no merit to Holubek’s first and third arguments. His second argument, raised for the first time 'on appeal, is that his conviction in Count 1 under section 934.215, Florida Statutes (2013), violates double jeopardy because the elements are subsumed into either Count 2 under section 847.0135(3)(b), Florida Statutes (2013), or Count 3 under section 847.0135(4)(a), Florida Statutes (2013)....

...nor. During the telephone conversation, Holubek discussed sex acts he would perform with the minor. After traveling to meet the minor, Holubek was arrested and charged with three counts: Count 1, unlawful use of a two-way communications device under section 934.215; Count 2, use of a computer to solicit a parent of a child under section 847.0135(3)(b); and Count 3, traveling to meet a minor after soliciting the minor *1116 under section 847.0135(4)(a)....

...State, 947 So.2d 565, 567 (Fla. 1st DCA 2006); see also Brown v. State, 1 So.3d 1231, 1232 (Fla. 2d DCA 2009) (noting that the exception applies to an open plea). Second, Holubek argues that a double jeopardy violation is apparent from the record because Count 1 under section 934.215 is subsumed within both Count 2 under section 847.1035(3)(b) and Count 3 under section 847.0135(4)(a). We agree. Very recently, this court held that convictions arising out of the same criminal episode for traveling to meet a minor under section 847.0135(4)(a), Florida Statutes (2013), and unlawful use of a two-way com-njunications device under section 934.215, Florida Statutes (2013), violate double jeopardy....

...5D14-3269, 173 So.3d 1079 , 2015 WL 4768997 (Fla. 5th DCA Aug. 14, 2015). Furthermore, our sister courts have recently determined that, when the charged conduct arises out of. the same criminal episode, a charge for unlawful use of a two-way communications device under section 934.215 is subsumed within a charge of solicitation under section 847.0135(3) and subsumed within a charge of travelling to meet a minor after solicitation under section 847.0135(4)....

...n appeal. Since we hold that Holu-bek’s sentence for unlawful use of a two-way communications device violates principles of double jeopardy, we reverse and remand for the lower court to vacate Holu-bek’s conviction and sentence for Count 1 under section 934.215....

further the commission of a felony, under section 934.215, Florida Statutes (2012). In our original opinion

...to meet a minor after soliciting a parent or guardian for the purpose of engaging in an illegal act with a child, a violation of section 847.0135(4)(b), Florida Statutes (2012); (2) unlawful use of a two- way communications device, a violation of section 934.215, Florida Statutes (2012); and (3) attempted lewd battery on a child, a violation of sections 800.04(4) and 777.04(1), Florida Statutes (2012)....

...when he was arrested). IV. THE DOUBLE JEOPARDY ARGUMENT The jury found Mr. Batchelor guilty of traveling to meet a minor under section 847.0135(4)(b) and unlawful use of a two-way communications device under section 934.215....

...urther the commission of any felony offense commits a felony of the third degree . . . . The State argues—based on a Blockburger1 "same elements test"—that the convictions under section 847.0135(4)(b) and section 934.215 do not violate double jeopardy because "neither of the statutory elements of the offense of unlawful use of a 1 Blockburger v....

...(2012). -5- two-way communications device is subsumed within the offense of traveling to meet a minor." The State focuses on the use of different language of the statutes, specifically that section 847.0135 refers to "unlawful sexual activity" whereas section 934.215 refers to the commission of "any felony." The State also argues that that there are significant technological differences between standard two-way communications devices (such as cellular telephones) and computers ("many two-way co...

...es are not capable of electronic data storage or transmission"). But both of these arguments have already been rejected by this court and other district courts of appeal. As this court explained in Mizner, 154 So. 3d at 399: Section 934.215 provides, in pertinent part, that "[a]ny person who uses a two-way communications device, including, but not limited to, a portable two-way wireless communications device, to facilitate or fur...

...1st DCA 2015), we find that Appellant’s convictions for both traveling to meet a minor after solicitation, in violation of section 847.0135(4)(a), Florida Statutes, and for use of a two-way communications device in the commission of a felony, in violation of section 934.215, Florida Statutes, violate double jeopardy under the facts of this case....

...illegal acts in this case. Accordingly, this case is distinguished from State v. Shelley, 176 So. 3d 914 (Fla. 2015), where the illegal acts solicited from the supposed minor were the same. We vacate the conviction and sentence for violation of section 934.215 and remand for correction of the criminal punishment code scoresheet and resentencing with the corrected scoresheet. AFFIRMED in part, REVERSED in part, and REMANDED with instructions. BENTON, LEWIS, and BILBREY, JJ., CONCUR...

...of section 847.0135(3)(b), Florida Statutes (2011), a third-degree felony; Count 2, traveling to meet a minor in violation of section 847.0135(4)(b), a second-degree felony; Count 3, unlawful use of a two-way communications device in violation of section 934.215, Florida Statutes (2011), a third-degree felony; and Count 4, attempt to commit sexual battery by a person eighteen years of age or older upon a child less than twelve years of age in violation of sections 794.011(2)(a) and 777.04(1), (4)(b), Florida Statutes (2011), a first-degree felony....

...The Double Jeopardy Issues. On his fourth appellate issue, Mr. Mizner argues that his convictions for soliciting a parent to consent to sex with minor, in violation of section 847.0135(3)(b), and unlawful use of a two-way communications device, in violation of section 934.215, violate the prohibition against double jeopardy....

...SC14-755, 2014 WL 3360176 (Fla. Jul. 1, 2014). In addition, we agree with the parties' arguments that the offense of unlawful use of a two-way communications device in this case was subsumed within the soliciting and traveling offenses. Section 934.215 provides, in pertinent part, that "[a]ny person who uses 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 offen...

...conduct of a child, in violation of section 847.0135(3)(b), Florida Statutes (2013) (Count 1); one count of unlawful use of a two-way communications device, a cellular phone, to facilitate the commission of a felony, traveling to engage in sexual conduct with a minor, in violation of section 934.215, Florida Statutes (2013) (Count 2); and one count of traveling to meet a minor to engage in sexual conduct with consent by a parent, in violation of section 847.0135(4)(b), Florida Statutes (2013) (Count 3). Each crime was alleged...

...The trial court did not abuse its discretion in this regard. Accordingly, we affirm the appellant’s judgment and sentence under sections 847.0135(3)(b) and 847.0135(4)(b). We accept the State’s concession of error and vacate the appellant’s judgment and sentence under section 934.215. AFFIRMED in part, VACATED in part, and REMANDED. LEWIS and RAY, JJ., CONCUR. 8 

...Sheriff's deputy. A jury convicted Rubio of traveling to meet a minor, in violation of section 847.0135, Florida Statutes (2012) (Count 2); using a two-way communications device to facilitate or further the commission of a felony, in violation of section 934.215, Florida Statutes (2012) (Count 3); and attempting to engage in sexual activity with a child twelve years of age or older but less than sixteen years of age, in violation of sections 800.04(4) and 777.04(1), Florida Statutes (2012)...

...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....

...See § 847.0135(3), Fla. Stat. (2012). It is also a felony to travel to meet a minor after such solicitation. See § 847.0135(4)(a), Fla. Stat. (2012). And it is a felony to use a two- way communications device to facilitate or further the commission of a felony. See § 934.215, Fla....

...eopardy based on undisputed facts de novo. See Binns v. State, 979 So. 2d 439, 441 (Fla. 4th DCA 2008). There is no statement of intent to authorize multiple punishments for the same crime in sections 847.0135(2), (4), Florida Statutes (2011), or section 934.215, Florida Statutes (2011). See Shelley v....

...3d at 1141; Hartley, 129 So. 3d at 491. The elements for unlawful use of a two-way communications device are: (1) the use of a two-way communications device (2) for the purpose of facilitating or furthering the commission of any felony offense. § 934.215....

...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....

...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,...

...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 -4- 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)....

...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....

...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....

...endant 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,...

...ges, 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....

...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....

...judgment of acquittal on the charge of unlawful use of a two-way communications device because the State presented no evidence that the walkie-talkies found in the Mustang's trunk were used in any way in the commission of any offense. Sanchez is correct. Section 934.215, Florida Statutes (2015), provides: Any person who uses a two-way communications device, including, but not limited to, a portable two-way wireless communications device, to facilitate or fur...

...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....

...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....

...violation of section 847.0135(3)(b), Florida Statutes (2013) (Count 1); one count of unlawful use of a two-way communications device, a cellular phone, to facilitate the commission of a felony, traveling to engage in sexual conduct with a minor, in violation of section 934.215, Florida Statutes (2013) (Count 2); and one count of traveling to meet a minor to engage in sexual conduct with consent by a parent, in violation of section 847.0135(4)(b), Florida Statutes (2013) (Count 3)....

...convicted of one count of traveling to meet a minor to do unlawful acts after using a computer online service, contrary to section 847.0135(4)(a), Florida Statutes (2013) (Count I); one count of unlawful use of a two-way communications device, contrary to section 934.215, Florida Statutes (2013) (Count II); one count of transmission of material harmful to minors, contrary to section 847.0138(2), Florida Statutes (2013) (Count III); and one count of unlawful use of computer services to solicit a child...

the commission of a crime, in violation of section 934.215, Florida Statutes (2016). The judgment, however

the commission of a crime, in violation of section 934.215, Florida Statutes (2016). The judgment, however

...necessary to prove an Attempted Lewd Battery. Further, Attempted Lewd Battery necessarily requires proof of failure 1The State also initially charged Byun in count three with unlawful use of a two-way communications device, in violation of section 934.215, Florida Statutes (2015)....

...engaging in unlawful sexual activity in violation of section 847.0135(4)(b); (3) attempted lewd battery on a child in violation of sections 800.04(4) and 777.04, Florida Statutes (2010); and (4) unlawful use of a two-way communications device in violation of section 934.215, Florida Statutes (2010)....

...David Leon Lashley, Appellant, was convicted by a jury of improper use of a computer service to solicit a minor contrary to section 847.0135(3)(a), Florida Statutes (2011); unlawful use of a two-way communications device to further the commission of a felony contrary to section 934.215; traveling to meet a person believed to be a minor after using a computer device capable of electronic data storage to solicit unlawful sexual conduct contrary to section 847.0135(4)(a); and failure to appear, contrary to section 843.15(1)(a)....

...State, 163 So. 3d 1277, 1279 (Fla. 1st DCA 2015) (holding that convictions arising out of the same criminal episode 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)....

...iolation of section 847.0135(3)(b), Florida Statutes (2011), a third-degree felony; Count 2, traveling to meet a minor in violation of section 847.0135(4)(b), a second-degree felony; Count 3, unlawful use of two-way communications in violation of section 934.215, Florida Statutes (2011), a third-degree felony; and Count 4, attempt to commit sexual battery by a person eighteen years of age or older upon a child less than twelve years of age in violation of sections 794.011(2)(a) and 777.04(1), (4)(b), Florida Statutes (2011), a first- degree felony....

...The Double Jeopardy Issues. On his fourth appellate issue, Mr. Mizner argues that his convictions for soliciting a parent to consent to sex with minor, in violation of section 847.0135(3)(b), and unlawful use of two-way communications, in violation of section 934.215, violate the prohibition against double jeopardy....

...SC14-755, 2014 WL 3360176 (Fla. July 1, 2014). In addition, we agree with the parties' arguments that the offense of unlawful use of a two-way communications device in this case was subsumed within the soliciting and traveling offenses. Section 934.215 provides, in pertinent part, that "[a]ny person who uses 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 offen...

two-way communications device, in violation of section 934.215, Florida Statutes (2013), and traveling to

...meet a minor, under section 847.0135(4)(a), Florida Statutes (2020); count II, use of computer services or devices to solicit illegal acts, under section 847.0135(3)(a); and counts III and IV, unlawful use of a two-way communications device, under section 934.215, Florida Statutes (2020). The charges arose from a sting operation in which a detective, posing as a fifteen-year-old girl, flirted with Hatcher via text messages in an online chat room....

...Luis Alberto Bermudez appeals his judgments and sentences, entered after no contest pleas, for: (1) traveling to meet a minor in violation of section 847.0135(4)(a), Florida Statutes (2012); (2) unlawful use of a two-way communications device to facilitate the commission of a felony in violation of section 934.215, Florida Statutes (2012); (3) resisting an officer with violence in violation of section 843.01, Florida Statutes (2012); and (4) resisting an officer without violence in violation of section 843.02....

...Bishop, Judge. December 11, 2024 PER CURIAM. Kadeem Cordale Debose was convicted of unlawful sexual activity with a minor under section 794.05, Florida Statutes, and the unlawful use of a two-way communications device in furtherance of a crime under section 934.215, Florida Statutes....

...of one count of traveling to meet a minor to do unlawful acts after using a computer online service, contrary to section 847.0135(4)(a), Florida Statutes (2013) (Count I); one count of unlawful use of a two-way communications device, contrary to section 934.215, Florida Statutes (2013) (Count II); one count of transmission of material harmful to minors, contrary to section 847.0138(2), Florida Statutes (2013) (Count III); and one count of unlawful use of computer services to solicit a chi...

...In addition, in Hamilton v. State, 163 So. 3d 1277 (Fla. 1st DCA 2015), this Court 3 held dual convictions for traveling to meet a minor under section 847.0135(4) and unlawful use of a two-way communications device under section 934.215 violate double jeopardy....

...activity, in violation of section 847.0135(4)(b), Florida Statutes (2012) (traveling after solicitation), violate the prohibition against double jeopardy. We also find that Appellant's dual convictions for unlawful use of a two-way communications device, in violation of section 934.215, Florida Statutes (2012), and traveling after solicitation violate double jeopardy....

...felony criminal investigation, adds the sentence, “The court instructs you that (name of crime) is a felony.” Next, as adopted, new instruction 29.26 (Unlawful Use of a Two-Way Communications Device) instructs upon the crime as set forth in section 934.215, Florida Statutes (2016), and includes the two elements that track the language of the statute....

...law regarding the definition of “law enforcement officer.” This instruction was adopted in 2008 [995 So. 2d 489] and amended in 2013 [131 So. 3d 755] and 2017. 29.26 UNLAWFUL USE OF A TWO-WAY COMMUNICATIONS DEVICE § 934.215, Fla....

...The term “two-way communications device” includes, but is not limited to a portable two-way wireless device. Lesser Included Offenses UNLAWFUL USE OF A TWO-WAY COMMUNICATION DEVICE — 934.215 CATEGORY ONE CATEGORY TWO FLA....

...Appellee. MORRIS, Judge. Michael Kania appeals his convictions after a jury trial for traveling to meet a minor after use of a computer, see § 847.0135(4), Fla. Stat. (2012), and unlawful use of a two-way communications device, see § 934.215, Fla....

...l. See Mizner v. State, 154 So. 3d 391, 399 (Fla. 2d DCA 2014) (citing Bell v. State, 122 So. 3d 958, 959 n.1 (Fla. 2d DCA 2013)). In Mizner, this court held that the offense of unlawful use of a two-way communications device under section 934.215 is subsumed within the offense of traveling to meet a minor under section 847.0135....

...Koch, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. Shannon Wright's sole argument on appeal is that his double jeopardy rights were violated when he was convicted of both the unlawful use of a two-way communications device under section 934.215, Florida Statutes (2017), and using a computer to seduce, solicit, lure, or entice a child under section 847.0135(3)(a), Florida Statutes (2017), and that this violation constituted fundamental error....

...Regarding the second prong of Novaton, it is apparent from the record that the two charges constituted a double jeopardy violation. "[W]hen the charged conduct arises out of the same criminal episode, a charge for unlawful use of a two-way communications device under section 934.215 is subsumed within a charge of solicitation under section 847.0135(3) ....