Belt v. State, 5D99-2042.
Decision Date | 21 January 2000 |
Docket Number | No. 5D99-2042.,5D99-2042. |
Parties | G. Calvin BELT, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
G. Calvin Belt, Osteen, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
G. Calvin Belt appeals the denial of his Rule 3.850 motion for post-conviction relief. In his motion, he sought relief on three grounds, two of which merit discussion: (1) he was improperly sentenced as an habitual traffic offender for felony driving while license suspended, a violation of section 322.34(2)(b), Florida Statutes (1995), when the statute specifically excludes habitual traffic offenders from its coverage; and (2) his probation was improperly violated because he should have received 120 days credit for time served in jail as a condition his one year term of probation, and if he had, his probation would have expired before he allegedly violated his probation. The trial judge denied the motion, stating only "case is resolved."
Belt was sentenced pursuant to section 322.34(2) which states that any person whose driver's license has been revoked pursuant to section 322.264 (habitual offender) and who drives any motor vehicle upon the highways of the state while such license is revoked upon: (a) a first conviction is guilty of a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.(b) a second or subsequent conviction is guilty of a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084. Although Belt was convicted of driving with a suspended license on April 19, 1993, December 13, 1994 and December 1996, the state does not allege that his license had been revoked pursuant to section 322.264 prior to his previous convictions.
Under this statute, Belt could only be convicted of a first degree misdemeanor for his first offense after having his license revoked as an habitual offender. As the court in State v. Harvey, 693 So.2d 1009 (Fla. 4th DCA 1997), acknowledged, although it may seem inconsistent to punish an habitual traffic offender with a shorter period of time than a non-habitual traffic offender, the statute does increase the habitual offender's penalty by revoking his or her license for a longer period of time. The legislature subsequently amended the section by enacting chapter 97-300, § 40, Laws of Florida, effective October 1, 1997. The amended statute does not apply to Belt who committed his offense on March 23, 1997.
Belt's driving record indicates that his license was revoked as an habitual traffic offender on either February or December 29, 1997. There are no other convictions between February 29, 1997 and the date of Belt's current offense, March 23, 1997. If Belt was not found to be an habitual traffic offender until December 20, 1997, as charged in the amended information, he was not driving with a license suspended as an habitual traffic offender. If he was habitualized in February, then this case represents his first offense under section 322.34(2), and Belt could only be convicted of a first degree misdemeanor.
Belt's second issue also has merit. Belt was sentenced as follows: ...
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