Gil v. State

• Decision Date: 11 July 2013
• Docket Number: No. SC11–1983.,SC11–1983.
• Citation: 118 So.3d 787
• Court: Florida Supreme Court
• Parties: Pedro GIL, Petitioner, v. STATE of Florida, Respondent.

118 So.3d 787

Pedro GIL, Petitioner,

v.STATE of Florida, Respondent.

No. SC11–1983.

Supreme Court of Florida.

July 11, 2013.

Carlos J. Martinez, Public Defender; Daniel Tibbitt and Melissa C. Del Valle, Assistant Public Defenders, Miami, FL, for Petitioner.

Pamela Jo Bondi, Attorney General; Richard L. Polin, Bureau Chief, Criminal Appeals, Heidi Milan Caballero and Nicholas A. Merlin, Assistant Attorneys General, Miami, FL, for Respondent.

LEWIS, J.

Petitioner Pedro Gil seeks review of the decision of the Third District Court of Appeal in State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011), on the basis that it expressly and directly conflicts with the decisions of other district courts of appeal on a question of law. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

FACTS AND BACKGROUND INFORMATION

On October 6, 2009, Pedro Gil was stopped in Miami–Dade County for speeding. Gil informed the officer that his driver's license was suspended, and a records search revealed that Gil was a habitual traffic offender.¹ Gil was then arrested. For purposes of this case, the arrest report listed the following charges: driving with a suspended license (DWLS), in violation of section 322.34(2), Florida Statutes (2009), and unlawful driving as a habitual traffic offender (HTO), in violation of section 322.34(5), Florida Statutes (2009). Section 322.34 is titled “Driving while license suspended, revoked, canceled, or disqualified” and provides:

(1) Except as provided in subsection (2), any person whose driver's license or driving privilege has been canceled, suspended, or revoked, except a “habitual traffic offender” as defined in s. 322.264, who drives a vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked is guilty of a moving violation, punishable as provided in chapter 318.

(2) Any person whose driver's license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:

(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

....

(5) 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, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 322.34, Fla. Stat. (2009).

On October 27, 2009, Gil pled nolo contendere to the misdemeanor DWLS charge in a county court and was adjudged guilty of this charge. Gil was sentenced to six months' probation and two hundred hours of community service, plus the payment of $358. On the same day, the State Attorney for the Eleventh Judicial Circuit filed an information that charged Gil with a violation of the felony HTO statute. Gil subsequently filed a motion to dismiss the information on the basis that it violated Florida's double jeopardy statute, section 775.021(4), Florida Statutes (2009), which provides:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

In support of the claim, Gil relied upon Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006), in which the Fifth District held that dual convictions under the DWLS statute and the HTO statute violate the “degree variants” principle of double jeopardy under section 775.021(4)(b)(2), Florida Statutes. Id. at 931.

In response to Gil's motion, the State asserted that the cases relied upon by the Fifth District in Duff had been overruled by this Court in Valdes v. State, 3 So.3d 1067 (Fla.2009). In Valdes, this Court held that “[t]he Legislature intends to disallow separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.” Id. at 1076 (quoting State v. Paul, 934 So.2d 1167, 1176 (Fla.2006) (Cantero, J., specially concurring)). According to the State, the crimes of unlawful driving as a habitual traffic offender under section 322.34(5) and driving with a suspended license under section 322.34(2) do not satisfy the second exception delineated in section 775.021(4)(b)(2) because they are located in separate statutory provisions, neither offense is an aggravated form of the other, and the offenses are not degree variants of the same offense.

The circuit court granted Gil's motion to dismiss the felony information in an order which provided:

[W]hile persuasive, the case of Valdes v. State, 3 So.3d 1067 (Fla.2009) does not necessitate the denial of the Defense's Motion at issue in this case. The Court's plain language reading of the two statutes at issue, Fla. Stat. § 322.34(5) and Fla. Stat. § 322.34(2), lead this Court to find that prosecution of the Defendant for both of these charges would violate Fla. Stat. § 775.021(4)(b).

On appeal, the Third District reversed the dismissal of the information. Gil, 68 So.3d at 1003. While acknowledging that the HTO provision, codified in section 322.34(5), appears to be a degree variant of the DWLS provision, codified in section 322.34(2), the Third District nonetheless stated:

Subsection (5) is not a degree variant of subsection (2) because: subsection (2) punishes for driving with a canceled or revoked license, whereas subsection (5) only punishes for driving with a revoked license; subsection (2) requires that the driver have knowledge that his license was canceled, suspended, or revoked, whereas subsection (5) does not require knowledge; and subsection (2) provides for different penalties based on the number of convictions the driver has for violating section 322.34 (sixty days incarceration for a first conviction, 364 days incarceration for a second conviction, and five years incarceration for a third or subsequent conviction), whereas a violation under subsection (5) is punishable up to five years incarceration regardless of the number of times the driver has been convicted for this offense. Additionally, subsection (2) specifically excludes habitual traffic offenders under subsection (5) from its application: “Any person whose driver's license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264 [the habitual traffic offender statute]....” § 322.34(2), Fla. Stat. (2009) (emphasis added).

Subsection (5) is also not a degree variant of subsection (2) because a violation of subsection (2) is not a “moving violation,” whereas a violation of subsection (5) is a “moving violation,” see§ 322.34(1); and the cancellation, suspension, or revocation of a driver's license under subsection (2) is based on the number of “ points ” a driver has accumulated pursuant to the point system provided in section 322.27 over a certain period of time, whereas subsection (5) is based on the number of convictions for the offenses listed in sections 322.264(1) and (2) over a five-year period.

Id. at 1001–02. The Third District ultimately held that “[b]ecause suspension or revocation under subsection (2) of section 322.34 is based on entirely different conduct and on a completely different criteria than a revocation under subsection (5), subsection (5) cannot be a degree variant of subsection (2), and therefore convictions for violating subsection (2) and subsection (5) do not constitute double jeopardy.” Id. at 1003.

This Court granted review of Gil based upon express and direct conflict with the decisions in Dees v. State, 54 So.3d 644 (Fla. 1st DCA 2011), Duff, 942 So.2d at 926, and Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002). In these cases, the First, Fourth, and Fifth District Courts of Appeal held that dual convictions under sections 322.34(2) and 322.34(5) are prohibited. The Dees and Franklin decisions do not discuss double jeopardy with regard to these statutory subsections, but instead hold that dual convictions are prohibited because subsection (2), by it express terms, does not apply to habitual traffic offenders. Franklin, 816 So.2d at 1204 (“[B]y definition, Franklin cannot be convicted of a violation of s. 322.34(2), which expressly does not apply to persons whose licenses have been revoked pursuant to s. 322.264, i.e., habitual offenders.”); Dees, 54 So.3d at 644 (citing Franklin ).

ANALYSIS

We conclude that the decision below must be quashed. Gil cannot be prosecuted under sections 322.34(2) and 322.34(5) for two reasons. First, the plain language of section 322.34 reflects that the crimes delineated...