               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

JOSEPH WEITZ,                      )
                                   )
           Petitioner,             )
                                   )
v.                                 )                             Case No. 2D16-4703
                                   )
STATE OF FLORIDA,                  )
                                   )
           Respondent.             )
___________________________________)

Opinion filed October 25, 2017.

Petition Alleging Ineffective Assistance
of Appellate Counsel. Polk County;
Reinaldo Ojeda, Judge.

Joseph Weitz, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.



SALARIO, Judge.

              Joseph 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.

             A jury 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).

             In 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 DCA 2015).

             To 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




                                           -2-
in Mr. Weitz's direct appeal, this court had applied the Blockburger1 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

episode).

              Although 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




              1
              Blockburger v. United States, 284 U.S. 299 (1932); see also
§ 775.021(4)(a), Fla. Stat. (2012).



                                           -3-
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.2 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.

              The 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


              2
               This is not to say that the questions are identical or that Mizner and
Exantus will ultimately control the application of the same elements test here. There
are, for example, differences between the transmitting statute and the statutes at issue
in Mizner and Exantus. The traveling and solicitation offenses in Mizner required use of
"a computer online service, internet service, local bulletin board, or any other device
capable of electronic data storage or transmission," § 847.0135(3)(b), (4)(b), which we
found were subsumed within the two-way communications device statute's requirement
of "a two-way communications device." 154 So. 3d at 399. In Exantus, we similarly
held, in essence, that both the receiving and two-way communications device statutes
required use of a two-way communications device, such that each offense was
subsumed by the other. See 198 So. 3d at 2. In contrast, the transmitting harmful
material statute requires sending harmful material "to a specific individual known by the
defendant to be a minor via electronic mail." § 847.0138(1)(b) (emphasis added).
Although we have held that the term electronic mail embraces text messages and so
would apply to Mr. Weitz's conduct here, see Duclos-Lasnier v. State, 192 So. 3d 1234,
1239 (Fla. 2d DCA 2016), it is arguable that the term "electronic mail" does not
subsume the term "two-way communications device" such that the same elements test
would preclude dual convictions for the transmitting and two-way communications
device charges.



                                           -4-
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 deficient.

              For 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. 2008).

              Accordingly, 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

reference this opinion in the notice of appeal. See Kist, 900 So. 2d at 572. In all other

respects, we deny Mr. Weitz's petition.




                                            -5-
           Petition granted in part and denied in part.

WALLACE and MORRIS, JJ., Concur.




                                        -6-
