MOISES RUBIO, DOC #H47218, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Moisés Rubio was convicted of three crimes after traveling to meet what he believed was a fourteen-year-old girl for sex, only to discover she was a Polk County Sheriff's deputy conducting an undercover operation. The appellate court affirmed his convictions for traveling to meet a minor and attempted sexual activity with a child, but reversed his conviction for unlawfully using a two-way communications device on double jeopardy grounds because that charge was subsumed within the traveling charge.
The trial court properly denied Rubio's motions to dismiss for entrapment and legal impossibility. However, Rubio's conviction on Count 3 (unlawfully using a two-way communications device) violates the Double Jeopardy Clause because that charge must be subsumed within the traveling to meet a minor charge when both offenses are charged during the same time period.
[1] An overt act toward the commission of a crime, required to prove an attempt, must be more than mere preparation and must reach far enough toward accomplishing the desired…
[2] A criminal attempt requires both a specific intent to commit the crime and an overt act done toward its commission that is beyond mere preparation.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a double jeopardy violation constitutes a fundamental error that we may address for the first time on appeal”
Establishes that even though Rubio did not raise the double jeopardy argument at trial, the appellate court could address it as fundamental error
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Join FLexlaw to unlock all legal intelligenceIn 2013, Rubio engaged in online communications with a person he believed to be a fourteen-year-old girl, with the intent to engage in sexual activity…
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In 2013, Moisés Rubio began communicating online with a person- whom- he believed to be a fourteen-year-old girl. When he ultimately appeared at her doorstep to have sex -with her, however, he discovered that she was actually a Polk County 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) (Count 4).1
On appeal, Rubio argues that the trial court erred in denying his motions to dismiss all counts based on entrapment and in denying his motion to dismiss Count 4 based on legal impossibility. He also argues for the first time that the prohibition against double jeopardy precluded his adjudication and sentencing on both Counts 2 and 3. We affirm without comment the court’s denial of Rubio’s motions to dismiss.2
We remand, however, for vacatur of the conviction and sentence on Count 3 on double jeopardy grounds. Although Ru-bio did not'argue in the trial court that the charge of unlawfully using a two-way communications device should have been subsumed within the charge of traveling to meet a- minor, a double jeopardy violation constitutes a fundamental error that we may address for the first time on appeal. See Mizner v. State, 154 So.3d 391, 399 (Fla. 2d DCA 2014). And, because the amended information charged Rubio with committing both of those offenses within the same time period, i.e., “on or between June 9, 2013[,] and June 11, 2013,” our precedent dictates that we find such a violation in this case. See id. at 400 (holding that when State charges defendant with both unlawfully using two-way communications device and traveling during same, time period, State charges single criminal episode regardléss of whether evidence could support finding of separate criminal episodes, and double jeopardy considerations require that ■ communications charge be subsumed within traveling charge). But see Lee v. State, 223 So.3d 342, 353 (Fla. 1st DCA 2017) (holding that examination of separate criminal episodes for double jeopardy purposes should encompass entire evidentiary record rather than just charging document and verdict form).
Accordingly, we reverse Rubio’s conviction and sentence for unlawfully using a two-way communications device as charged in Count 3 and remand for vacatur on that count. In all other respects, the judgment is affirmed.
Affirmed in part; reversed in part; remanded with instructions.
WALLACE and MORRIS, JJ., Concur.
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Arroyo v. State (Fla. 6th DCA 2024)…red from the Second District Court of Appeal to this Court on January 1, 2023. 2 Although this issue was not raised below, a violation of double jeopardy constitutes fundamental error that may be raised for the first time on appeal. Rubio v. State, 233 So. 3d 482, 483 (Fla. 2d DCA 2017). trial, the victim testified that the center console of the truck where his gun was stored had been rummaged through, but the gun had not been removed. Thus, as the State acknowledges, there was no geographic or temporal se…
Authorities Cited
- LEE v. State, 223 So. 3d 342 (Fla. 1st DCA 2017)
- Mizner v. State, 154 So. 3d 391 (Fla. 2d DCA 2014)