                                           IN THE DISTRICT COURT OF APPEAL
                                           FIRST DISTRICT, STATE OF FLORIDA

ALAN LYNSDALE HAMILTON,                    NOT FINAL UNTIL TIME EXPIRES TO
                                           FILE MOTION FOR REHEARING AND
      Appellant,                           DISPOSITION THEREOF IF FILED

v.                                         CASE NO. 1D13-5380

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 27, 2015.

An appeal from the Circuit Court for Escambia County.
J. Scott Duncan, Judge.

Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellee.




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

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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 399–400.

      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.

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      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 dual 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

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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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