       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        JOHN PATRICK FRAVEL,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                      Nos. 4D13-2682 & 4D13-2788

                           [ February 10, 2016 ]

   Consolidated appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.
08021190CF10B.

   Antony P. Ryan, Regional Counsel and Louis G. Carres, Special
Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional
Counsel, Fourth District, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.

TAYLOR, J.

    John Patrick Fravel appeals his convictions for two counts of fraudulent
use of personal identification information and two counts of grand theft.
These convictions resulted from two separate cases which were
consolidated below and for appellate purposes. Appellant argues that the
trial court erred in denying his motion for continuance to locate witnesses,
denying his motion for judgment of acquittal, excluding testimony about a
witness’s IRS debt, and adjudicating him guilty of two counts of fraudulent
use of personal identification information in violation of double jeopardy.
We affirm on all issues except the claim concerning double jeopardy.

   Briefly, the state sought to prove that appellant and co-defendant Gene
Dodge stole the identity of two victims and used their personal
identification to fraudulently open multiple lines of credit. Only the first
two counts are relevant for purposes of this opinion. Count I alleged that
between July 12, 2007, and February 26, 2008, appellant fraudulently
used the personal identification information of the victim, and that the
amount of the injury or fraud was $5,000 or more but less than $50,000.
Count II alleged that appellant fraudulently used the personal
identification information belonging to the same victim during the same
time frame, but did not specify an amount of injury or fraud.

  Appellant argues that his convictions for Count I and Count II violate
double jeopardy. Specifically, he asserts that the elements of Count II were
subsumed within the elements of Count I.

    The state responds that there is no double jeopardy violation because
appellant’s charges arose from two distinct criminal acts, in that appellant
used the victim’s personal identification to obtain credit cards at two
different banks, Chase and Capital One.

    Although appellant did not raise the double jeopardy argument below,
a double jeopardy violation may be raised for the first time on direct
appeal, because it is fundamental error to convict a defendant of two
offenses where one in subsumed within another. See Tannihill v. State,
848 So. 2d 442, 444 (Fla. 4th DCA 2003); Bell v. State, 122 So. 3d 958,
959 n.1 (Fla. 2d DCA 2013).

   “Determining whether double jeopardy is violated based on undisputed
facts is a purely legal determination, so the standard of review is de novo.”
Webb v. State, 104 So. 3d 1153, 1154 (Fla. 4th DCA 2012) (citation
omitted).

   “The Fifth Amendment guarantee against double jeopardy consists of
three separate constitutional protections: ‘It protects against a second
prosecution for the same offense after acquittal. It protects against a
second prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.’ ” Yeye v. State, 37
So. 3d 324, 325 (Fla. 4th DCA 2010) (quoting North Carolina v. Pearce, 395
U.S. 711, 717 (1969) (footnotes omitted), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989)).

    The first step in the double jeopardy analysis is to determine if the
offenses occurred during a single criminal episode. “In determining
whether offenses occurred during a single criminal episode, courts must
‘look to whether there are multiple victims, whether the offenses occurred
in multiple locations, and whether there has been a temporal break
between offenses.’ ” Benjamin v. State, 77 So. 3d 781, 783-84 (Fla. 4th
DCA 2011) (quoting State v. Paul, 934 So. 2d 1167, 1172-73 (Fla. 2006),
receded from in part by Valdes v. State, 3 So. 3d 1067 (Fla. 2009)).

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   If the offenses occurred during the same criminal episode, then the
defendant shall not be convicted and sentenced for offenses which: (1)
require identical elements of proof; (2) are degrees of the same offense as
provided by statute; and (3) are lesser included offenses, the statutory
elements of which are subsumed by the greater offense.                 See §
775.021(4)(b), Fla. Stat. (2007). However, a defendant may be convicted
and sentenced for multiple offenses arising out of the same criminal
episode, if the offenses are separate. § 775.021(4)(a), Fla. Stat. (2007); see
also Hayes v. State, 803 So. 2d 695, 700 (Fla. 2001) (“[D]ouble jeopardy
does not prohibit multiple convictions and punishments where a defendant
commits two or more distinct criminal acts.”) (emphasis in original).
Offenses are separate “if each offense requires proof of an element that the
other does not . . . .” Id.

   Here, the state charged appellant in Count I with a violation of section
817.568(2)(b), Florida Statutes, and in Count II with a violation of section
817.568(2)(a), Florida Statutes. The elements of fraudulent use of
personal identification information under section 817.568(2)(a), Florida
Statutes (2007), are: (1) willfully and without authorization fraudulently
using or possessing with intent to fraudulently use; (2) personal
identification information concerning an individual; and (3) without first
obtaining that individual’s consent. A violation of section 817.568(2)(a) is
a third degree felony.

    Section 817.568(2)(b), Florida Statutes (2007), states in pertinent part
that “[a]ny person who willfully and without authorization fraudulently
uses personal identification information concerning an individual without
first obtaining that individual’s consent commits a felony of the second
degree . . . if the pecuniary benefit, the value of the services received, the
payment sought to be avoided, or the amount of the injury or fraud
perpetrated is $5,000 or more.” (emphasis added). A violation of section
817.568(2)(b) is a second degree felony.

    In this case, the two charges are degrees of the same offense. The
offenses do not each contain a separate element of proof that the other
does not. Appellant thus argues that convictions for both charges
constitute a double jeopardy violation because section 817.568(2)(a) is a
lesser included offense, which is subsumed by the greater offense of
section 817.568(2)(b).

   As mentioned above, the state argues that no double jeopardy violation
exists because each charge related to a different criminal episode. Indeed,
the state presented evidence that appellant used the victim’s personal

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identification to obtain two different credit cards, one from Chase and the
other from Capital One. According to the state, Count I corresponds to the
Chase account and Count II corresponds to the Capital One account.
However, neither the information nor the verdict form makes this
distinction. Although there was evidence of two distinct acts, it is not clear
from the information and verdict form that appellant was charged with two
distinct acts.

    Count I alleged fraudulent use of the victim’s personal identification
information between July 12, 2007 and February 26, 2008, with the injury
or fraud in an amount of $5,000 or more but less than $50,000. Count II
alleged the same elements and named the same victim during the same
time frame without specifying an amount. Because no facts were alleged
in either charge to distinguish the acts constituting one offense from the
other, Count II was subsumed within the offense alleged in Count I.

   When one offense is subsumed within another offense charged in the
same information, the lesser offense must be vacated, because dual
convictions violate the protection against double jeopardy. See, e.g.,
Mizner v. State, 154 So. 3d 391, 399-400 (Fla. 2d DCA 2014) (vacating
convictions and sentences for soliciting a parent to consent to sex with a
minor and for unlawful use of two-way communications device because
both offenses were subsumed in the conviction for traveling to meet a
minor). Accordingly, we reverse and remand for the trial court to vacate
the conviction and sentence on Count II.

   Affirmed in part, Reversed in part, and Remanded.

CIKLIN, C.J., and LEVINE, J., concur.

                            *           *       *

   Not final until disposition of timely filed motion for rehearing.




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