JOSEPH WEITZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed convictions for transmitting harmful material to a minor and unlawful use of a two-way communications device, but reversed and remanded sentences because the trial court improperly imposed consecutive sentences for charges arising from the same criminal episode.
When two convictions arise from the same criminal episode, sentences must run concurrently rather than consecutively, even when one is an HFO sentence and the other is not.
[1] Consecutive sentences for convictions arising from the same criminal episode must be vacated and run concurrently, regardless of whether one sentence is imposed as a habi…
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Join FLexlaw to unlock all legal intelligenceJoseph Weitz was convicted by jury of transmitting material harmful to minors to a minor and unlawful use of a two-way communications device. The tria…
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Joseph Weitz challenges his convictions and sentences for transmitting material harmful to minors to a minor and unlawful use of a two-way communications device. Weitz was convicted following jury trial, and the trial court sentenced him as an habitual felony offender (HFO) to ten years’ prison on the transmitting harmful material count and to a consecutive five-year non-HFO term on the two-way communications device count. We affirm Weitz’s conviction for transmitting material harmful to minors to a minor for the reasons set forth by this court in Duclos-Lasnier v. State, 2D15-2415, 2016 WL 3057352 (Fla. 2d DCA May 27, 2016), and affirm his conviction for unlawful use of a two-way communications device without further comment.
However, the trial court erred in running Weitz’s non-HFO sentence for unlawful use of a two-way device consecutively to his HFO sentence for transmitting harmful material when both charges arose out of the same criminal episode. See Hale v. State, 630 So.2d 521, 525 (Fla.1993). Accordingly, we must reverse Weitz’s sentences. We remand with instructions to the trial court to run the sentences concurrently. See id. at 526; Saldana v. State, 139 So.3d 351, 353 (Fla. 2d DCA 2014).
Affirmed in part, reversed in part, and remanded with instructions.
NORTHCUTT and KHOUZAM, JJ., Concur.
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Citator
Cited By
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Weitz v. State, 229 So. 3d 872 (Fla. 2d DCA 2017)…ced Mr. Weitz to ten years’ imprisonment as a habitual felony offender (HFO) for the transmitting offense and to a concurrent noñ-HFO sentence of five years’ imprisonment for the unlawful use offense. We affirmed his convictions. See Weitz v. State, 196 So. 3d 466, 466, (Fla. 2d DCA 2016). In ground one of his petition, Mr. Weitz argues that his appellate counsel [*874] was ineffective for failing to argue that his convictions violate double jeopardy. Because a double jeopardy violation constitutes fundament…
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Weitz v. State, 244 So. 3d 350 (Fla. 2d DCA 2018)
Authorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Eliseo Gonzales Saldana v. State, 139 So. 3d 351 (Fla. 2d DCA 2014)