Robinson v. State

• Decision Date: 22 January 2020
• Docket Number: Case No. 2D17-3087
• Citation: 290 So.3d 1007
• Parties: Henry Lee ROBINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

290 So.3d 1007

Henry Lee ROBINSON, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D17-3087

District Court of Appeal of Florida, Second District.

Opinion filed January 22, 2020.

Rehearing Denied February 26, 2020

EN BANC

LUCAS, Judge.

Henry Lee Robinson was found guilty by a jury of driving while his license was revoked as an habitual traffic offender (HTO) in violation of section 322.34(5), Florida Statutes (2016). He raises two issues in his appeal of his judgment and sentence, both of which revolve around the same misapprehension of the elements of this criminal offense. Mr. Robinson contends that the State failed to provide sufficient evidence that the Department of Highway Safety and Motor Vehicles (DHSMV) had sent the required "notice" that his license had been revoked¹ and that, relatedly, the circuit court should have granted his request for a special jury instruction because the approved jury instruction, Fla. Std. Jury Instr. (Crim.) 28.11(a), fails to include or define notice as an element of this offense. Mr. Robinson gleans this element of notice not from the text of section 322.34(5) (which defines the offense), but from recitations within our case law that stated the DHSMV's notice to a driver of HTO revocation was an element of this crime.

Following supplemental briefing from the State and the defense on whether notice or knowledge is an element of section 322.34(5), this court voted on its own motion to proceed en banc pursuant to Florida Rule of Appellate Procedure 9.331(d). Our case law has inadvertently grafted an element onto a statutorily defined criminal offense that the legislature did not see fit to include. We believe it necessary to recede from those statements in our prior holdings that mistakenly included notice as a required element of a section 322.34(5) offense for the reasons that follow.

I.

Mr. Robinson has, to put it charitably, a somewhat checkered driving history. He has previously been convicted of driving with a suspended or revoked license on twenty-one prior occasions, eight of which were felonies. Four times, the DHSMV has designated Mr. Robinson as an HTO and, pursuant to the mandatory direction of section 322.27,² revoked his license accordingly. At no time did Mr. Robinson ever attempt to reinstate his driver license.

On October 22, 2016, Officers Tommy Nguyen and John Melton of the Tarpon Springs Police Department pulled Mr. Robinson over for a traffic violation. Mr. Robinson was later charged by information filed in the Pinellas County Circuit Court for the offense of driving while his license was revoked as an HTO under section 322.34(5). A jury trial was held on June 21 and 22, 2017.

While working through the jury charge conference, an issue arose concerning what the State was required to prove in its case against Mr. Robinson. The discourse between the circuit court and the attorneys uncovered a marked dissonance between what the text of the statute and the applicable approved jury instruction say about the elements of a section 322.34(5) offense versus what our case law has recited:

Ms. Constantine [for the State]: [E]ven the notice requirement – that they [DHSMV] have to send the notice to the individual – is statutory. But if Your Honor notices, it's not in the instruction.

The Court: Right.

Ms. Constantine: Which is very odd. And the same thing with the habitual traffic offender, the specific subjects, you know, I was telling the Court about regarding the priors, is also not in the jury instruction. Like it says, habitual traffic offender, but it doesn't address that in the standard.

The Court: Right. I'm not modifying the standard.

Ms. Constantine: Yes. I understand. It's just interesting. Well, I mean, obviously if there's going to be notice arguments, it's not going to be in the standard instructions. It's nowhere to be found.

The Court: I understand.

....

Ms. Constantine: [I] understand that the Defense has provided case law from the Second DCA, that's a Motion to Dismiss case dealing with showing that notice has to have been provided to the Defendant; however, I would ask the Court that they not be permitted to argue that or ask DHSMV any questions about it because it would be misleading and confusing to the jury.

The Court: Well, they can proffer that.

Ms. Constantine: Proffering it, yes. I don't think that notice is a requirement under the law. I get that the Second DCA put that in there. I went through the statute, Your Honor. It is nowhere in the statute for HTO, 322.34(5). It is, however, in 322.34(2), which is what requires knowledge. ... [W]e can go to the standard instruction that's been provided by the Florida Supreme Court, which also does not include notice in it. ...

[I] can show Your Honor the statute where it references notice must be proven to establish knowledge for 322.34(2), and that's where they're getting that from, but that's not a requirement in the statute [ section 322.34(5) ].

It's not a requirement by the Florida Supreme Court. I don't know really how to reconcile that. The only thing that I can tell the Court, it's not in the statute, so the legislature is not requiring us to prove that. ...

The Court: Okay. Well, you can put on DHSMV, and we can proffer the parts related to this. Were you going to try to make knowledge an element of the crime, Ms. McNulty-Parker?

Ms. McNulty-Parker [for the defense]: Well, Your Honor, I think that there's a distinction between knowledge and notice. I agree with the State that it is not in the standard jury instructions, but I would point the Court to the case that I had given the Court yesterday, which is State v. Fields, Dinsdale, Stepp. That is 809 So. 2d 99. That's a Second DCA case. And I'm referring, if we go to page 2, it states – let's see, Your Honor.

Ms. Constantine: I agree with Ms. McNulty-Parker. It does say notice has to –

Ms. McNulty-Parker: Well, I do. I want to put that on the record. Okay. ["]The violation created by Section 322.34(5) does not involve[–]as an element of ... finding that the motorist has been convicted on three separate occasions of DWLS [driving while license suspended].

Instead, it involves driving a motor vehicle on the public highways of Florida at [the] time when [the] DMV has revoked the motorist's license and given notice of the revocation.["]³

So they're basically stating, Your Honor, that is a requirement. That is something that the State is required to prove and I do think that is fair game based on this case law. It's good law. It hasn't been overturned.

The circuit court ultimately denied the request for a special jury instruction that would have included a notice element because the defense would not agree to the inclusion of an inference instruction the State requested in the jury instruction (if the jury were to be instructed that notice was indeed an element of the offense). Specifically, the State maintained that if notice were an element of a section 322.34(5) offense, then, like a section 322.34(2) offense, the jury ought to be instructed that the DHSMV's mailing of notice would give rise to an inference that Mr. Robinson had knowledge that his license was canceled, suspended, or revoked as an HTO.⁴ Ultimately, Mr. Robinson's driving record was submitted to the jury with redactions to remove all data that would have reflected notice from the DHSMV of his license's revocation or HTO status. The State also proffered the testimony of an employee of the DHSMV, who explained the manner in which the department sent HTO revocation notices. She further testified before the jury that Mr. Robinson's last five-year HTO revocation occurred on December 2, 2013, and that that revocation remained active.

Mr. Robinson was convicted as charged, adjudicated guilty, and sentenced to 365 days in county jail. He now brings the issue of notice under section 322.34(5) to the forefront for our consideration in this appeal.

II.

"Whether a jury instruction was legally adequate is a question of law subject to de novo review." Santiago v. State, 77 So. 3d 874, 876 (Fla. 4th DCA 2012) (citing State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001) ); see also State v. Floyd, 186 So. 3d 1013, 1019 (Fla. 2016) (holding that the certified question of whether a standard criminal jury instruction was "confusing, contradictory, or misleading" posed a pure question of law and was subject to de novo review). Moreover, the discrete issue in the jury instruction before us concerns how the elements of a criminal offense are defined. That is an issue of statutory interpretation. As the Florida Supreme Court explained in State v. Gray, 435 So. 2d 816, 820 (Fla. 1983), superceded by statute on other grounds, McCloud v. State, 260 So. 3d 911, 915 (Fla. 2018), "[t]he elements of a crime are derived from the statutory definition." See also Fla. House of Representatives v. Crist, 999 So. 2d 601, 615 (Fla. 2008) ("Enacting laws—and especially criminal laws—is quintessentially a legislative function."). For that reason, as well, a de novo review of the circuit court's ruling is appropriate in this case. See Acevedo v. State, 218 So. 3d 878, 879 (Fla. 2017) (interpretation of a criminal statute is reviewed de novo); Champagne v. State, 269 So. 3d 629, 632 (Fla. 2d DCA 2019) ("Questions of statutory interpretation are reviewed de novo ...." (quoting Eustache v. State, 248 So. 3d 1097, 1100 (Fla. 2018) )).

A.

The text of section 322.34(5) is plain, clear, and unambiguous. Here is what the statute says about the elements of this crime:

Any person whose driver 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.

The elements of this offense, then, are straight-forward. If a person has had his or her driver license revoked as an HTO and he or she drives a motor vehicle on the state's highways while such license...