Patterson v. State

• Decision Date: 06 October 2006
• Docket Number: No. 2D04-2243.,2D04-2243.
• Citation: 938 So.2d 625
• Parties: Mark Wayne PATTERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

938 So.2d 625

Mark Wayne PATTERSON, Appellant, v. STATE of Florida, Appellee.

No. 2D04-2243.

District Court of Appeal of Florida, Second District.

October 6, 2006.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Mark Wayne Patterson appeals an order withholding adjudication and placing him on probation for a series of motor vehicle offenses, the most serious of which was the third-degree felony offense of driving while license suspended as a habitual traffic offender. See §§ 322.264, .34(5), Fla. Stat. (2003). Mr. Patterson entered a plea of no contest to the charges, but reserved the right to appeal one issue: the denial of his "motion in limine to exclude prior uncounseled pleas." This motion argued that Mr. Patterson could not be convicted of driving while license suspended as a habitual traffic offender because some of the prior convictions that supported his designation as a habitual traffic offender were entered in violation of his right to counsel. Pursuant to Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), we conclude there is no constitutional infirmity in the use of uncounseled pleas to support Mr. Patterson's designation as a habitual traffic offender or the subsequent use of this designation to "reclassify" his subsequent offense. We therefore affirm the order withholding adjudication and placing Mr. Patterson on probation.

I. BACKGROUND

On September 19, 2003, as a result of a routine traffic stop, Mr. Patterson was charged with a number of traffic infractions. At the time, Mr. Patterson's license was suspended because the Department of Highway Safety and Motor Vehicles (DHSMV) had classified him as a habitual traffic offender and suspended his license as required by section 322.264. Thus, the most serious charge Mr. Patterson faced was the third-degree felony of "driving while license suspended as a habitual traffic offender." § 322.34(5).

Mr. Patterson filed a "motion in limine to exclude prior uncounseled pleas." He alleged that his designation as a habitual traffic offender was the result of pleas he entered in four prior case numbers, based on charges that were punishable by up to nine months in jail.¹ Mr. Patterson asserted that he had entered the pleas without the assistance of counsel at a time when he was indigent and that he entered the pleas without knowingly and voluntarily waiving his right to counsel. As a result, Mr. Patterson argued, these offenses could not be used to enhance his sentence or reclassify² his current offense of driving with a suspended license from a misdemeanor to a third-degree felony. In support of his argument, Mr. Patterson cited State v. Beach, 592 So.2d 237 (Fla.1992), and Hlad v. State, 585 So.2d 928 (Fla.1991). The trial court denied this motion after a brief hearing and later accepted Mr. Patterson's plea of no contest to this charge, subject to Mr. Patterson's reserving his right to appeal this issue.

II. THE RECLASSIFICATION OF DRIVING WHILE LICENSE SUSPENDED FROM A MISDEMEANOR TO A FELONY

To understand Mr. Patterson's argument on appeal and to assess its validity, it is important to first distinguish the two ways in which sequential convictions for driving while license suspended may result in an increase in the degree or level of the offense, thus exposing the defendant to a greater penalty.

A first offense of driving while license suspended is a second-degree misdemeanor. § 322.34(2)(a). Under section 322.34(2)(b), a second offense becomes a first-degree misdemeanor, and under section 322.34(2)(c), a third or subsequent offense becomes a third-degree felony.

Although this was apparently Mr. Patterson's fifth offense of driving while license suspended, he was not charged under section 322.34(2)(c). Instead, he was charged with a violation of section 322.34(5), which provides:

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....

Section 322.264 defines a "habitual traffic offender" as a person whose driving record, as maintained by the Department of Highway Safety and Motor Vehicles (DHSMV), reflects three or more convictions for specified moving traffic offenses (including driving while license suspended), occurring within five years. Section 322.27(5) requires the DHSMV to revoke the license of a person designated as a habitual traffic offender for a minimum of five years.

Thus, a person who is charged with a fourth offense of driving while his license is suspended may be charged with either (1) the third-degree felony described in section 322.34(2)(c), or (2) the third-degree felony described in section 322.34(5), as long as the DHSMV has revoked his driver's license as a habitual traffic offender. Although both offenses are third-degree felonies, the elements of each offense are different. Each requires a current offense of driving while license suspended, but section 322.34(2)(c) specifically relies upon proof of the prior convictions to support the reclassification of the current offense, while section 322.34(5) relies upon proof of the DHSMV's designation of the defendant as a habitual traffic offender to reclassify the offense.

Because section 322.34(2)(c) requires proof of the prior convictions as elements of the offense, the validity of those convictions may be challenged in an effort to prevent the reclassification of the charged crime. Specifically, Florida courts have held that a defendant charged with a sequential crime may challenge the use of prior convictions to reclassify the crime or increase the penalty when the prior convictions were obtained in violation of the defendant's constitutional right to appointed counsel. See, e.g., Davis v. State, 710 So.2d 116, 117 (Fla. 2d DCA 1998); Register v. State, 619 So.2d 498 (Fla. 2d DCA 1993); Kirby v. State, 765 So.2d 723 (Fla. 1st DCA 1999). The genesis of these cases can be traced to two Florida Supreme Court cases, Beach, 592 So.2d 237, and Hlad, 585 So.2d 928. In turn, Beach and Hlad were based upon United States Supreme Court precedent involving the constitutional right to counsel and the validity of convictions obtained in violation of that right.

III. THE RIGHT TO COUNSEL AND THE USE OF CONVICTIONS OBTAINED IN VIOLATION OF THAT RIGHT

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court recognized an indigent criminal defendant's right to appointed counsel in felony criminal proceedings and reversed a conviction obtained in violation of that right. In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Court went a step further, holding that a felony conviction obtained in violation of the right to counsel could not be used to "support guilt or enhance punishment for another offense." Id. at 115, 88 S.Ct. 258. In fact, the Court held that the prior judgments in Burgett, which did not reflect that the defendant was represented by counsel, raised a presumption that the defendant was denied his right to counsel and that no waiver of that right could be inferred from a silent record. Id. at 114, 88 S.Ct. 258; see also United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (prohibiting use of conviction obtained in violation of right to counsel on sentencing scoresheet); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) (holding defendant was deprived of due process by use of convictions that were constitutionally invalid under Gideon to impeach his credibility during trial).

Although a defendant's right to counsel in felony cases was well established in the 1960s, the law was slower to develop in misdemeanor cases. As of 1979, based upon the United States Supreme Court's opinions in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), appointed counsel was required in all felony cases but was not required in misdemeanor cases when a term of imprisonment was not actually imposed.

In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), overruled by Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), Baldasar had a prior uncounseled misdemeanor theft conviction, punishable by imprisonment of up to one year, but he had received a sentence of only probation, making the conviction "valid" under Scott and Argersinger. Thereafter, however, the conviction was used to support a charge of felony theft (second offense), resulting in a sentence of three years' imprisonment. In addressing whether the prior uncounseled conviction could support the reclassification of the second theft offense, four justices of the Supreme Court joined in a per curiam opinion holding that the prior conviction, though "valid" under Scott, could not be used to support the later more serious charge. Justice Blackmun filed a concurring opinion, agreeing that the prior conviction could not be used to support the subsequent offense, but arguing that a criminal defendant should be afforded appointed counsel in any prosecution for an offense punishable by more than six months' imprisonment or whenever the defendant is convicted and actually sentenced to a term of imprisonment. Baldasar, 446 U.S. at 229, 100 S.Ct. 1585.³

It was within this context that the Florida Supreme Court decided Beach, 592 So.2d 237, and Hlad, 585 So.2d 928, relied upon by Mr. Patterson. In Hlad, the Florida Supreme Court interpreted Justice Blackmun's concurring opinion in Baldasar as supporting a holding by the majority of the Supreme Court that an uncounseled...