Rodriguez v. State
Docket: No. 5D14-1218
Court: District Court of Appeal of Florida; April 24, 2015; Florida; State Appellate Court
Luis Rodriguez appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, specifically challenging the trial court's dismissal of his claim regarding ineffective assistance of counsel related to double jeopardy concerns. He contends that his attorney failed to inform him that his convictions for two offenses—(1) traveling to meet a minor for illegal sexual conduct and (2) using the Internet to lure a parent of a child—could result in a double jeopardy violation. The court finds merit in this argument, determining that the second offense is a lesser-included offense of the first due to overlapping elements, thus violating double jeopardy principles. Rodriguez asserts he would not have entered nolo contendere pleas had he been made aware of this issue. The trial court's ruling, which cited an arrest affidavit to refute Rodriguez's claim by indicating he committed the offenses on separate dates, is deemed erroneous. The affidavit's content, which did not mention a minor in the advertisement that led to Rodriguez's response, does not support the trial court’s conclusion that he engaged in luring a child. The decision affirms part of the trial court’s ruling but reverses the denial of Rodriguez's claim and remands for further proceedings. Four days after Rodriguez initially responded to an advertisement, an undercover officer, posing as the mother of a thirteen-year-old girl, contacted him regarding the girl’s need for sexual guidance. Rodriguez showed interest and requested photos of the child. The affidavit indicates Rodriguez believed he was communicating directly with the minor throughout their exchanges. Ultimately, he agreed to bring condoms and lubricant to a McDonald’s, where he showed up that night, constituting his first act of 'luring' just hours before his arrest. The record does not definitively counter Rodriguez’s claims that the communications were part of a single email conversation. The trial court's failure to attach a copy of the information complicates the review, as it prevents determining if separate acts of 'luring' were charged in each count. Consequently, the decision affirms some aspects, reverses others, and remands the case for an evidentiary hearing or to attach relevant record portions to address Rodriguez's ineffective assistance of counsel claim. Rodriguez received two concurrent five-year sentences with credit for time served. The affidavit interprets 'ww4m' as women seeking men.