Using a Two-Way Deviceto Commit a Felony

South Florida Criminal Defense Attorney

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Using a Two-Way Device to Commit a Felony

Aggressive Palm Beach County Defense for Florida Statute 934.215 Charges

 

Charged with This "Add-On" Felony?

Florida Statute 934.215 is frequently charged alongside other felony offenses, adding an additional third-degree felony to your case simply because a phone, computer, or other communication device was involved. This can significantly increase your potential prison exposure. An experienced defense attorney can challenge whether this charge is legally appropriate and fight to have it dismissed or reduced.

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Understanding the Charge

Florida Statute 934.215, commonly known as "Unlawful Use of a Two-Way Communications Device," criminalizes using any two-way communication device to facilitate or further the commission of any felony offense. This is an extremely broad statute that prosecutors frequently use to "stack" additional charges onto nearly any felony case where a phone call, text message, email, or other electronic communication occurred.

The statute was originally enacted in 2001 and is frequently applied in drug trafficking cases, solicitation cases, fraud schemes, and many other contexts. Because modern life involves constant use of communication devices, prosecutors often attempt to add this charge whenever they can connect any communication to alleged criminal activity.

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What Qualifies as a "Two-Way Communications Device"?

The statute broadly encompasses virtually any device capable of two-way communication, including but not limited to:

Cell Phones, Smartphones, Landline Telephones, Computers, Tablets, Text Messaging Apps, Email, Social Media Platforms, Two-Way Radios, Pagers, Walkie-Talkies, and Internet Chat Services.

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What the State Must Prove

To secure a conviction under F.S. 934.215, the prosecution must establish the following elements beyond a reasonable doubt:

1. The defendant used a two-way communications device;

2. The defendant used the device to facilitate or further the commission of a felony offense; and

3. The defendant did so knowingly and intentionally.

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Full Statutory Text: F.S. 934.215

934.215 Unlawful use of a two-way communications device.—

Any person who uses 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 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.—s. 1, ch. 2001-114.

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Potential Penalties

While a third-degree felony may sound less serious than the underlying felony charge, this "add-on" offense carries significant penalties that compound your overall exposure.

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Criminal Classification

Third-Degree Felony

This offense is classified as a third-degree felony under Florida law, placing it among serious criminal charges that carry substantial consequences.

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Prison Sentence

Up to 5 Years

A conviction can result in up to five years in Florida State Prison, which may be served consecutively with sentences for other charges.

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Probation

Up to 5 Years

In addition to or in lieu of prison, courts may impose up to five years of probation with various conditions and restrictions.

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Fines

Up to $5,000

Courts may impose fines up to $5,000 in addition to other penalties, court costs, and fees associated with felony prosecution.

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Offense Severity Ranking

Under Florida's Criminal Punishment Code, Unlawful Use of a Two-Way Communications Device is assigned a Level 4 offense severity ranking. This ranking affects sentencing guidelines and can impact plea negotiations, especially when combined with other charges.

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The "Stacking" Problem

One of the most significant dangers of this charge is how it compounds your exposure. If you are charged with a primary felony offense and the state adds a 934.215 charge, you now face potential consecutive sentences. For example, if you are charged with a second-degree felony (up to 15 years) and the state adds a two-way device charge (up to 5 years), your theoretical maximum exposure jumps to 20 years. This leverage is often used by prosecutors to pressure defendants into accepting plea agreements.

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Common Scenarios:

Drug Trafficking Cases

This is the most common application of F.S. 934.215. If a defendant allegedly used a cell phone to arrange a drug transaction—even a single text message or phone call—prosecutors will typically add this charge to the trafficking or delivery charges.

Internet Solicitation Cases

In cases involving alleged solicitation of minors or prostitution, the use of apps, websites, or messaging services to communicate almost always results in this charge being added alongside the primary offense.

Fraud and Theft Schemes

White-collar cases involving wire fraud, identity theft, or organized theft rings frequently include this charge when phones or computers were used in furtherance of the alleged scheme.

Organized Criminal Activity

Cases involving conspiracy, racketeering, or gang-related activity often include multiple 934.215 charges based on communications between alleged co-conspirators.

Burglary and Robbery

Even in traditional property crimes, if phones were used to coordinate activities or communicate with co-defendants, prosecutors may add this charge.

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Defense Strategies

There are several powerful defenses available to challenge charges under F.S. 934.215. An experienced attorney will analyze the specific facts of your case to determine which strategies offer the best chance of success.

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Double Jeopardy / Merger

In some cases, the communication device use may be so integral to the underlying offense that charging it separately constitutes impermissible double jeopardy. If the communication is not truly separate from the primary offense, but rather an essential element of it, the charges should merge. This is a complex legal argument that requires careful analysis of how the statute overlaps with the underlying charge.

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Insufficient Nexus to Felony

The state must prove that the communication device was used to "facilitate or further" the felony offense. Mere possession of a phone, or communications unrelated to the alleged crime, are not sufficient. We challenge whether the prosecution can actually prove the required connection between the communication and the criminal activity.

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Challenging the Underlying Felony

F.S. 934.215 requires that the device be used to facilitate a felony offense. If the underlying felony charge is defeated—whether through dismissal, acquittal, or reduction to a misdemeanor—the two-way device charge necessarily fails. Often, the most effective defense is to focus resources on defeating the primary charge.

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Fourth Amendment Violations

Evidence of communications often comes from cell phone searches, wiretaps, or other electronic surveillance. If law enforcement obtained this evidence in violation of your Fourth Amendment rights—such as searching your phone without a warrant or exceeding the scope of a warrant—we can move to suppress the evidence, potentially gutting the prosecution's case.

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Lack of Knowledge or Intent

If you were unaware that the communication was connected to criminal activity, or if your intent was innocent, you may have a valid defense. This is particularly relevant in cases involving alleged co-conspirators where the defendant may not have known the full scope of others' activities.

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Identity and Attribution

The state must prove that you were the person who sent or received the communications. In an era of shared devices, spoofed numbers, and hacked accounts, establishing who actually used a device to send a particular message can be more difficult than prosecutors assume.

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Negotiation for Dismissal

Because this is often an "add-on" charge, skilled negotiation can sometimes result in its dismissal as part of a plea agreement on the underlying offense. Prosecutors may be willing to drop this charge in exchange for resolution of the primary case.

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Why Choose Our Firm

Defending against charges under F.S. 934.215 requires an attorney who understands both the technical aspects of digital evidence and the strategic implications of this frequently overcharged offense.

We recognize that prosecutors often add this charge to increase their leverage in plea negotiations. Our approach is to fight back aggressively—challenging the legal basis for the charge, scrutinizing the evidence, and refusing to let a "throw-on" charge pressure you into an unfavorable resolution.

Our experience with digital evidence, electronic discovery, and the constitutional issues surrounding device searches allows us to identify weaknesses that other attorneys might miss. We work with forensic experts when necessary to challenge the state's evidence and protect your rights.

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The Legal Process

Arrest & Initial Appearance

Following arrest, you will appear before a judge for bond determination. Having an attorney at this stage can impact bond conditions and begin building your defense immediately.

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Discovery & Investigation

We obtain all evidence including phone records, digital forensics, and any surveillance used by the state. We analyze whether the evidence actually supports the charges filed.

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Pre-Trial Motions

We file strategic motions to suppress illegally obtained evidence, challenge the sufficiency of the charges, or raise constitutional defenses including double jeopardy arguments.

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Negotiations & Resolution

We explore all options for resolution, including dismissal of the 934.215 charge, reduction, or favorable plea terms when appropriate for your situation.

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Trial

If your case proceeds to trial, we present a comprehensive defense challenging every element the state must prove beyond a reasonable doubt.

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Frequently Asked Questions:

Why am I being charged with this in addition to my other charges?

Prosecutors routinely add F.S. 934.215 charges whenever a communication device was used in connection with alleged criminal activity. This practice increases your potential sentence exposure and gives the state additional leverage in plea negotiations. It is one of the most commonly "stacked" charges in Florida.

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Can I be convicted of this charge if I'm acquitted of the underlying felony?

No. The statute requires that the communication device be used to facilitate or further the commission of a felony offense. If you are acquitted of the underlying felony, or if it is reduced to a misdemeanor, the 934.215 charge cannot stand because there is no felony to facilitate.

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The police searched my phone without a warrant. Can that evidence be suppressed?

Potentially, yes. Under the U.S. Supreme Court's decision in Riley v. California, law enforcement generally must obtain a warrant before searching the contents of a cell phone incident to arrest. If your phone was searched without a valid warrant or recognized exception, we can file a motion to suppress any evidence obtained from that search.

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I only sent one text message. Can I really be charged with a felony for that?

Unfortunately, yes. The statute does not require extensive or repeated use of a communication device. Even a single text message, phone call, or email can form the basis for this charge if the state alleges it was used to facilitate a felony. However, this also means the state's case may rest on thin evidence that can be challenged.

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Is this charge the same as the underlying offense? Isn't that double jeopardy?

This is a valid legal argument in certain circumstances. If the use of the communication device is truly integral to the underlying offense rather than separate conduct, a double jeopardy or merger defense may apply. This requires careful legal analysis of how the charges overlap and whether the legislature intended for both to apply.

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Can this charge be dropped as part of a plea deal?

Yes, this is often possible. Because 934.215 is frequently an "add-on" charge, prosecutors may agree to dismiss it as part of negotiations on the primary offense. However, this requires skilled negotiation and leverage—the state will not simply drop charges without reason.