Weitz v. State
229 So. 3d 872
| Fla. Dist. Ct. App. | 2017Background
- Defendant Joseph Weitz was convicted by a jury of (1) transmitting material harmful to minors, § 847.0138 (2012), and (2) unlawfully using a two-way communications device, § 934.215 (2012), based on sexually explicit text messaging with a 14-year-old neighbor.
- Both charges alleged the offenses occurred "on or about March 2, 2012."
- Trial court sentenced Weitz to 10 years (HFO) for the transmitting conviction and a concurrent 5 years (non-HFO) for the two-way device conviction.
- Weitz appealed; his appellate counsel did not raise a double jeopardy challenge to the dual convictions.
- Weitz filed a Florida Rule of Appellate Procedure 9.141(d) petition alleging ineffective assistance of appellate counsel for failing to raise that double jeopardy claim.
- The Second District granted relief on ground one (double jeopardy), finding counsel deficient and prejudicially so; the court ordered appointment of appellate counsel to pursue a new appeal limited to the double jeopardy issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for failing to raise a double jeopardy challenge to dual convictions for transmitting harmful material and unlawful use of a two-way communications device | Weitz: counsel was deficient for not arguing that the statutory elements of the two offenses are subsumed under the same-elements (Blockburger) test when charged from the same episode | State: the offenses did not arise from the same criminal episode, so dual convictions are permissible | Court: counsel was deficient and the omission was prejudicial; granted new appeal limited to the double jeopardy issue |
Key Cases Cited
- Mizner v. State, 154 So. 3d 391 (Fla. 2d DCA 2014) (same-elements analysis found unlawful use of two-way device subsumed other electronic/minor-sexual-offense statutes when from same episode)
- Exantus v. State, 198 So. 3d 1 (Fla. 2d DCA 2016) (dual convictions for receiving information about a minor and unlawful use of a two-way communications device violated double jeopardy when from same episode)
- Perri v. State, 154 So. 3d 1204 (Fla. 2d DCA 2015) (failure to raise double jeopardy on appeal can constitute ineffective assistance of appellate counsel)
- Smith v. State, 19 So. 3d 417 (Fla. 2d DCA 2009) (standard for assessing ineffective assistance of appellate counsel)
- Kist v. State, 900 So. 2d 571 (Fla. 2d DCA 2004) (appellate counsel ineffective for not raising double jeopardy based on other district opinions)
- Lowe v. State, 2 So. 3d 21 (Fla. 2008) (prejudice standard: omission must undermine confidence in result)
- Duclos-Lasnier v. State, 192 So. 3d 1234 (Fla. 2d DCA 2016) (text messages fall within statutory term "electronic mail")
- Batchelor v. State, 193 So. 3d 1054 (Fla. 2d DCA 2016) (post-briefing holding that soliciting and unlawful use of two-way communications device violate double jeopardy when from same episode)