Levine v. State, 00-383

Decision Date14 February 2001
Docket Number4,00-383
PartiesNOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING. BRYCE LEVINE, Appellant, v. STATE OF FLORIDA, Appellee. CASE NO. 4D00-383 JANUARY TERM 2001 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT Opinion filed
CourtFlorida District Court of Appeals

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanley Goldstein, Judge; L.T. Case No. 98-24470 CF10A.

Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Meredith L. Balo, Assistant Attorney General, Fort Lauderdale, for appellee.

PER CURIAM.

The appellant, Bryce Levine, appeals from his convictions, pursuant to a no contest plea, for felony driving while license suspended (DWLS) (habitual offender) and resisting arrest without violence. Appellant contends that the trial court erred in (1) denying his motion to dismiss where one of the predicate prior convictions upon which the trial court relied in declaring him a habitual offender was uncounseled, and (2) in determining that the DWLS statute is not unconstitutionally vague. We agree with the trial court and affirm.

As to appellant's first point on appeal, the argument is not preserved because it was not dispositive of the case below. An issue is preserved for appeal on a guilty plea only if it is dispositive of the case. See Zambuto v. State, 731 So. 2d 46 (Fla. 4th DCA 1999); see also Weber v. State, 492 So. 2d 1166, 1167 (Fla. 4th DCA 1986); Fla. R. App. P. 9.140(b)(2)(A). "An issue is legally dispositive 'only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case.'" Zambuto, 731 So. 2d at 46 (quoting Vaughn v. State, 711 So. 2d 64, 65 (Fla. 1st DCA 1998)).

In this case, the issue was not dispositive because, as the trial court observed, appellant had several withholds upon which his habitualization could have been based even if the challenged predicate offense was uncounseled. This court in State v. Keirn, 720 So. 2d 1085, 1090 (Fla. 4th DCA 1998), held that a withheld adjudication could be considered a "conviction" under section 322.34, Florida Statutes (1995). See also Raulerson v. State, 763 So. 2d 285 (Fla. 2000)(agreeing with this court's interpretation of the term "conviction" as it is used in the DWLS statute). Therefore, because the state could have relied on appellant's withheld adjudications as a basis for habitualization, the issue of whether the subject predicate offense was uncounseled was not dispositive of the case and is not preserved on appeal.

We also agree with the trial court that section 322.34(5), Florida Statutes (1998), is not unconstitutionally vague. Appellant contends that the vagueness is caused by the language in section 322.34(5) that classifies as a felon "[a]ny person whose driver's license has been revoked pursuant to s. 322.264 (habitual offender) . . . ." (Emphasis added). However, section 322.264 does not confer any authority to actually "revoke" a license, it merely defines a "habitual traffic offender." Therefore, according to appellant, the two statutes do not give adequate warning of proscribed conduct.

"[W]here reasonably possible, a statute will be interpreted in a manner that resolves all doubts in favor of its constitutionality. It is also well recognized that to withstand a vagueness challenge, a statute must give persons of ordinary intelligence adequate notice of the proscribed conduct." State v. Fuchs, 769 So. 2d 1006, 1008 (Fla. 2000)(citations omitted). See also Jean v. State, 764 So. 2d 605, 608 (Fla. 4th DCA 1999)("'objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.'")(quoting Maynard v. Cartwright, 486 U.S. 356, 361 (1988))(emphasis in original). "If the record demonstrates that the [defendant] engaged in some conduct clearly proscribed by the plain and ordinary meaning of the statute, then he cannot successfully challenge it for vagueness nor complain of its vagueness as applied to the hypothetical conduct of others." State v. Barnes, 686 So. 2d 633, 637 (Fla. 2d DCA 1996). See also Sieniarecki v. State, 756 So. 2d 68, 74-75 (Fla. 2000).

Section...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT