ALAN LYNSDALE HAMILTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2015-05-27
No. 1D13-5380
BENTON, CLARK, and SWANSON, JJ., concur.
163 So. 3d 1277 Florida District Court of Appeal, First District (2015) Negative Treatment
Cited by 33 cases

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Holding

Dual convictions for traveling to meet a minor and unlawful use of a two-way communications device violate double jeopardy when both offenses occurred within the same criminal episode and the elements of the latter are subsumed within the former.


Headnotes

[1] Convictions for traveling to meet a minor and unlawful use of a two-way communications device violate double jeopardy when the elements of the latter are subsumed within…

[2] The offense of unlawful use of a two-way communications device requires proof of using a device to facilitate a felony, while traveling to meet a minor requires proof of…

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Facts & Procedural History

The defendant communicated with an undercover officer posing as a minor, arranged to meet her, and was arrested upon arrival. He was convicted of trav…

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Opinion of the Court
PER CURIAM.

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 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 399^00.

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.

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 *1279dual 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 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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Citator

Cited By (15 total)

  • LEE v. State, 223 So. 3d 342 (Fla. 1st DCA 2017)
    …) using a computer to facilitate or solicit the sexual conduct of a child. We affirm as to .all issues raised by Lee, but write to address only one. He argues that the decisions in State v. Shelley, 176 So. 3d 914 (Fla. 2015), and Hamilton v. State, 163 So. 3d 1277 (Fla. 1st DCA 2015), compel reversal of two of his convictions on double jeopardy grounds. The State seeks review of the trial court’s departure sentence in a separate appeal.1 We-affirm Lee’s convictions for all three offenses because, unlike in S…
    1 / 3
  • Holt v. State, 173 So. 3d 1079 (Fla. 5th DCA 2015)
    …ommission of any felony offense.” Exantus v. State, — So. 3d -, -, 2014 WL 8764326, at *2 (Fla. 2d DCA 2014). We conclude, as did the Second District Court of Appeal in Mizner and Exantus and the First District Court of Appeal in Hamilton v. State, 163 So. 3d 1277 (Fla. 1st DCA 2015), 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. See Hamilton, 163 So. 3d at 1279; Mizner, 154 So. 3d at 399; Exan…
  • Holubek v. State, 173 So. 3d 1114 (Fla. 5th DCA 2015)
    …f 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). Hamilton v. State, 163 So. 3d 1277, 1279 (Fla. 1st DCA 2015) (holding “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”); Mizner v. State, 154 So. 3d 391, 399 (Fla. 2d DC…

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