Burgess v. State, 2D14–4680.

Decision Date02 September 2016
Docket NumberNo. 2D14–4680.,2D14–4680.
Citation198 So.3d 1151
Parties Donald BURGESS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Howard L. Dimmig, II, Public Defender, and Amanda V. Isaacs, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

BY ORDER OF THE COURT:

Upon consideration of the motion for rehearing of July 6, 2016, decision filed by Appellee on July 18, 2016,

IT IS ORDERED that the motion is granted. Accordingly, the opinion dated July 6, 2016, is withdrawn, and the attached opinion, which further certifies conflict with Newton v. State, 898 So.2d 1133, 1134 (Fla. 4th DCA 2005)

, and State v. Bletcher, 763 So.2d 1277, 1278 (Fla. 5th DCA 2000), is substituted therefor. No further motions will be entertained.

EN BANC

SALARIO

, Judge.

Donald Burgess challenges his conviction and sentence for violating section 322.34(5), Florida Statutes (2012)

, which makes it a third-degree felony for one to drive a motor vehicle when his or her driver's license has been revoked for being a habitual traffic offender. Mr. Burgess pleaded guilty to this offense but specifically reserved for appeal the denial of his motion to dismiss, which raised the issue of whether he can be convicted under the statute when he never actually had a driver's license. We answered a similar question affirmatively in Carroll v. State, 761 So.2d 417 (Fla. 2d DCA 2000), and the trial court denied Mr. Burgess's motion to dismiss on that basis. For the reasons that follow, we now recede from Carroll, conclude that a conviction under section 322.34(5) requires a defendant to have had a driver's license, and reverse Mr. Burgess's judgment and sentence.

I.

Maxcene Devariste was driving his car into the parking lot of a shopping plaza in the early evening.1 According to Mr. Devariste, he stopped at a stop sign at an intersection near the entrance to the lot and saw a small black car moving in the opposite direction. Although there was also a stop sign facing in the direction of the small black car, it traveled into the intersection without stopping and struck Mr. Devariste's car. The black car did not stop, but Mr. Devariste saw its license plate number and immediately called 911.

The black car was stopped by two corporals with the Collier County Sheriff's Office, and Mr. Burgess was identified as the driver. Mr. Burgess gave the corporals a version of events similar to Mr. Devariste's, except that he denied running the stop sign and said Mr. Devariste caused the accident. A records check revealed that Mr. Burgess did not have a valid driver's license and was a habitual traffic offender. He was arrested for driving while his license was revoked as a habitual offender, leaving the scene of a crash, and driving without a license.

The State did not file charges for leaving the scene and driving without a license. In a one-count information, the State charged only that Mr. Burgess “did unlawfully operate a motor vehicle upon the highways of this state while his driver's license had been revoked pursuant to s. 322.264 (habitual traffic offender), contrary to Florida Statute 322.34(5)

.” Mr. Burgess responded with a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) alleging that he “has never had a driver's license in Florida or any other state.” Because he never had a license, he argued, he could not be convicted of a crime having as an essential element the act of driving after that nonexistent driver's license had been revoked.

The State did not file a traverse and thus admitted, for purposes of Mr. Burgess's motion, the truth of his allegation that he had never held a driver's license. See Fla. R. Crim. P. 3.190(d)

. At a hearing on the motion, Mr. Burgess acknowledged that under our decision in Carroll, a defendant could be convicted under the statute even if he had not held a driver's license, but he argued that the First District's decision to the contrary in Crain v. State, 79 So.3d 118 (Fla. 1st DCA 2012), set up a conflict among the district courts of appeal on the question. Correctly recognizing that it was legally bound to follow Carroll, the trial court denied the motion to dismiss.

Thereafter, Mr. Burgess entered a negotiated plea of guilty to the one offense charged in the information, reserving for appeal the denial of his motion to dismiss. The trial court accepted the plea and sentenced Mr. Burgess to five years in prison. This is Mr. Burgess's timely appeal.

II.

We review an order on a motion to dismiss under rule 3.190(c)(4)

de novo. State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002). On appeal, Mr. Burgess argues that we should reconsider our holding in Carroll and hold that section 322.34(5) applies only when the defendant had an actual, physical driver's license that was subsequently revoked because the defendant was a habitual traffic offender. Failing that, Mr. Burgess requests that we certify conflict with the First District's decision in Crain. We agree that Carroll was wrongly decided, recede from it, and reverse Mr. Burgess's conviction and sentence.2

A.

Titled “Driver's Licenses,” chapter 322 regulates licensure for the operation of motor vehicles. It sets up a general rule that a person must have a valid driver's license issued by the Department of Highway Safety and Motor Vehicles in order to operate a motor vehicle in the state. § 322.03(1). There are exceptions to the requirement of licensure—nonresidents licensed in another jurisdiction need not have a Department-issued license, for example—but licensure in general is the rule. See §§ 322.03, .04. Absent an exception, driving a car without a valid driver's license is a misdemeanor of the second degree. See §§ 322.03(1), .39.

The term “driver's license” is defined by section 322.01(17)

as “a certificate that, subject to all other requirements of law, authorizes an individual to drive a motor vehicle and denotes an operator's license as defined in 49 U.S.C. s. 30301.” 49 U.S.C. § 30301(5) (2012) defines a “motor vehicle operator's license” as a “license issued by a State authorizing an individual to operate a motor vehicle on public streets, roads, or highways.” The requirement that a motor vehicle operator have a driver's license thus means that the operator must have a certificate issued by the Department that authorizes the person to operate a motor vehicle. See also § 322.032(3) (providing for the development of “digital proof of driver's license” on the same terms required for “issuance of a physical driver's license”).

In 1972, the legislature amended chapter 322 to add a requirement—codified at section 322.27(5)—that the Department revoke the license of any individual designated as a habitual traffic offender. See generally ch. 72–175, Laws of Fla. A “habitual traffic offender” is a person whose driving record, as maintained by the Department, reflects a specified number of convictions for specified traffic offenses. § 322.264, Fla. Stat. (2012)

. A key purpose of this revocation provision is to [d]eny the privilege of operating motor vehicles ... to persons who ... have demonstrated their indifference to the safety and welfare of others.” § 322.263(2).

To enforce the revocation of driver's licenses imposed on habitual traffic offenders, the legislature also added subsection (5) to section 322.34

in 1972. That statute establishes various criminal offenses and noncriminal infractions related to driving after a license has been suspended, revoked, canceled, or disqualified. Section 322.34(5) makes it a third-degree felony to drive when a driver's license has been revoked for being a habitual traffic offender. The statute provides as follows:

Any person whose driver's license has been revoked pursuant to s. 322.264

(habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree....

§ 322.34(5), Fla. Stat. (2012)

(emphasis added).

We must enforce section 322.34(5)

in accord with “the plain meaning of the actual language” the legislature used. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla.2013).

When the statutory text is unambiguous, “there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)

(quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931) ). We resort to other rules of statutory construction only where the statute is ambiguous in the sense that it could be reasonably understood to mean two different things. Fajardo v. State, 805 So.2d 961, 963–64 (Fla. 2d DCA 2001).

On its face, section 322.34(5)

created an offense that can only be committed when a defendant who was issued a driver's license has had that license revoked because he or she is a habitual traffic offender. Because a “driver's license” is a defined term referring to a physical certificate authorizing a person to drive, it necessarily follows that a defendant who has never been issued such a certificate cannot be convicted under this statute because a license that was never issued does not exist for the purposes of revoking it. See

Crain, 79 So.3d at 122 (holding that the statute “refer[s] only to a ‘driver's license,’ ‘a certificate that ... authorizes an individual to drive a motor vehicle.’ and that [i]t “is a firmly established rule that [c]ourts must apply a statute as they find it’ ' (footnote omitted) (citation omitted) (quoting § 322.01(17), Fla. Stat. (2009), and Guilder v. State, 899 So.2d 412, 419 (Fla. 4th DCA 2005) )); see also § 322.01(36) (defining the term “revocation” for the purposes of chapter 322 as applying only to “the termination of a licensee's privilege to drive” (emphasis added)).

We see no ambiguity in section 322.34(5)

and, for that...

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