NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MOISES RUBIO, DOC #H47218, )
)
Appellant, )
)
v. ) Case No. 2D15-5603
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed October 27, 2017.
Appeal from the Circuit Court for Polk
County; Wayne Durden and Jalal Harb,
Judges.
Howard L. Dimmig, II, Public Defender,
and Caroline Joan S. Picart, Special
Assistant Public Defender, Bartow, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Laurie Benoit-Knox,
Assistant Attorney General, Tampa,
for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
In 2013, Moises Rubio began communicating online with a person whom
he believed to be a fourteen-year-old girl. When he ultimately appeared at her doorstep
to have sex with her, however, he discovered that she was actually a Polk County
Sheriff's deputy. A jury convicted Rubio of traveling to meet a minor, in violation of
section 847.0135, Florida Statutes (2012) (Count 2); using a two-way communications
device to facilitate or further the commission of a felony, in violation of section 934.215,
Florida Statutes (2012) (Count 3); and attempting to engage in sexual activity with a
child twelve years of age or older but less than sixteen years of age, in violation of
sections 800.04(4) and 777.04(1), Florida Statutes (2012) (Count 4).1
On appeal, Rubio argues that the trial court erred in denying his motions
to dismiss all counts based on entrapment and in denying his motion to dismiss Count 4
based on legal impossibility. He also argues for the first time that the prohibition against
double jeopardy precluded his adjudication and sentencing on both Counts 2 and 3.
We affirm without comment the court's denial of Rubio's motions to dismiss.2
We remand, however, for vacatur of the conviction and sentence on Count
3 on double jeopardy grounds. Although Rubio did not argue in the trial court that the
charge of unlawfully using a two-way communications device should have been
subsumed within the charge of traveling to meet a minor, a double jeopardy violation
constitutes a fundamental error that we may address for the first time on appeal. See
Mizner v. State, 154 So. 3d 391, 399 (Fla. 2d DCA 2014). And, because the amended
information charged Rubio with committing both of those offenses within the same time
period, i.e., "on or between June 9, 2013[,] and June 11, 2013," our precedent dictates
1
Count 1 was dismissed.
2
The Table of Contents in Rubio's initial brief identifies an argument
concerning the trial court's denial of his motion for a judgment of acquittal, but Rubio
does not actually make such an argument in the body of his brief (although the State
responds as if he does). In any event, we also affirm without comment the court's
denial of that motion.
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that we find such a violation in this case. See id. at 400 (holding that when State
charges defendant with both unlawfully using two-way communications device and
traveling during same time period, State charges single criminal episode regardless of
whether evidence could support finding of separate criminal episodes, and double
jeopardy considerations require that communications charge be subsumed within
traveling charge). But see Lee v. State, 223 So. 3d 342, 353 (Fla. 1st DCA 2017)
(holding that examination of separate criminal episodes for double jeopardy purposes
should encompass entire evidentiary record rather than just charging document and
verdict form).
Accordingly, we reverse Rubio's conviction and sentence for unlawfully
using a two-way communications device as charged in Count 3 and remand for vacatur
on that count. In all other respects, the judgment is affirmed.
Affirmed in part; reversed in part; remanded with instructions.
WALLACE and MORRIS, JJ., Concur.
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