FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Alleging Ineffective Assistance of Appellate Counsel. Polk
County; Reinaldo Ojeda, Judge.
Weitz, pro se.
Jo Bondi, Attorney General, Tallahassee, and Jonathan P.
Hurley, Assistant Attorney General, Tampa, for Appellee.
Weitz has filed a petition under Florida Rule of Appellate
Procedure 9.141(d) arguing three grounds of ineffective
assistance of appellate counsel. 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. We deny
grounds two and three without comment.
convicted Mr. Weitz of one count of transmitting material
harmful to minors and one count of unlawfully using a two-way
communications device. Both counts alleged that Mr. Weitz
committed the offenses in Polk County "on or about March
2, 2012." The evidence at trial was that Mr. Weitz
engaged in a lengthy series of sexually-explicit text
messages with a fourteen-year-old neighbor. The trial court
sentenced Mr. Weitz to ten years' imprisonment as a
habitual felony offender (HFO) for the transmitting offense
and to a concurrent non-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).
ground one of his petition, Mr. Weitz argues that his
appellate counsel was ineffective for failing to argue that
his convictions violate double jeopardy. Because a double
jeopardy violation constitutes fundamental error that may be
raised for the first time on appeal, Mizner v.
State, 154 So.3d 391, 399 (Fla. 2d DCA 2014), the
failure to raise a double jeopardy violation on appeal can
constitute ineffective assistance of appellate counsel,
see Perri v. State, 154 So.3d 1204, 1205 (Fla. 2d
determine whether Mr. Weitz is entitled to relief, we must
first ask whether his appellate counsel rendered deficient
performance by failing to argue that his dual convictions for
unlawful use of a two-way communications device and
transmitting harmful material to a minor violate double
jeopardy. See Smith v. State, 19 So.3d 417, 418
(Fla. 2d DCA 2009). At the time appellate counsel filed the
initial brief in Mr. Weitz's direct appeal, this court
had applied the Blockburger same-elements test to hold
that multiple convictions under the two-way communications
device statute and three other statutes violate double
jeopardy when the charges arise from the same criminal
episode. See Exantus v. State, 198 So.3d 1 (Fla. 2d
DCA 2014); Mizner, 154 So.3d 391. These statutes all
involve the use of electronic methods of communication and
sexual activity involving minors. In Mizner, we held
that convictions for soliciting a parent to consent to sex
with a minor in violation of section 847.0135(3)(b),
traveling to have sex with a minor in violation of section
847.0135(4)(b), and unlawful use of a two-way communications
device violated double jeopardy when the charges arise from
the same episode because the statutory elements of each
offense were subsumed by the statutory elements of every
other offense charged in that case. 154 So.3d at 399-400.
Thereafter, in Exantus, 198 So.3d at 2, we said the
same thing about dual convictions for receiving information
about a minor in violation of section 847.0135(2)(d) and
unlawful use of a two-way communications device. See also
Batchelor v. State, 193 So.3d 1054, 1058 (Fla. 2d DCA
2016) (holding, after briefing and argument in Mr.
Weitz's direct appeal, that convictions for soliciting
and unlawful use of a two-way communications device violate
double jeopardy when the charges arise out of the same
Mizner and Exantus did not address a charge
of transmitting harmful material to a minor in violation of
section 847.0138, the question of whether the statutory
elements of that offense are subsumed by the statutory
elements of unlawful use of a two-way communications device
is so close to the questions answered in Mizner and
Exantus that a reasonable appellate lawyer would
have raised the argument in Mr. Weitz's direct
appeal. Cf. Kist v. State, 900 So.2d 571,
572 (Fla. 2d DCA 2004) (finding appellate counsel ineffective
for failing to raise a double jeopardy argument based on
relevant cases from other district courts of appeal). In that
connection, we note that during the sentencing in this case,
Mr. Weitz's trial counsel stated on the record that our
then-recent decision in Mizner presented a double
jeopardy argument that Mr. Weitz should raise on appeal.
State argues that counsel's performance cannot be deemed
deficient because the two charges in this case did not arise
from the same criminal episode. This is at least a close call
that reasonable counsel would have argued against on appeal.
The State pleaded a single count for each offense and alleged
that each offense took place over the same period of
time-"on or about March 2, 2012." On similar facts,
we rejected a similar argument by the State in
Mizner because "[t]he State did not charge the
offenses as occurring during separate criminal episodes;
rather, it charged them as occurring during a single criminal
episode." 154 So.3d at 400; see also Shelley v.
State, 134 So.3d 1138, 1141-42 (Fla. 2d DCA 2014)
(rejecting, before the initial brief was filed in Mr.
Weitz's direct appeal, the argument that dual convictions
for soliciting and traveling arose out of different criminal
episodes where the charges were "based on a solicitation
occurring on the same date as the traveling offense"),
approved, 176 So.3d 914 (Fla. 2015). Accordingly, we
conclude that Mr. Weitz's appellate counsel was
substantially the same reasons, we also find that the
deficiency prejudiced Mr. Weitz. Because the double jeopardy
issues resolved in Mizner and Exantus-both
of which were on the books at the time of Mr. Weitz's
direct appeal-are both very favorable to Mr. Weitz and very
similar to the double jeopardy issues this case presents, we
conclude that the failure to raise the issue
"compromised the appellate process to such a degree as
to undermine confidence in the correctness of the
result." Lowe v. State, 2 So.3d 21, 42 (Fla.
we grant the petition as to ground one and grant Mr. Weitz a
new appeal on the double jeopardy issue that ground presents.
Within thirty days from the date of the issuance of the
mandate in this case, the trial court shall appoint an
appellate attorney to file a brief on the double jeopardy
issue outlined above. Appellate counsel shall, within thirty
days of the appointment, file a new notice of appeal and