State v. Miller, 3D15–628.
Decision Date | 01 June 2016 |
Docket Number | No. 3D15–628.,3D15–628. |
Citation | 193 So.3d 1001 |
Parties | The STATE of Florida, Appellant, v. Daryl MILLER, Appellee. |
Court | Florida District Court of Appeals |
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellant.
Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellee.
Before WELLS, SALTER and SCALES, JJ.
WELLS
, Judge.
Daryl Miller was charged with violating section 322.34(5) of the Florida Statutes
titled “[d]riving while license suspended, revoked, canceled, or disqualified.” See § 322.34(5), Fla. Stat. (2014).1 The trial court treated Miller's sworn motion to dismiss as a motion for reduction of charges to the lesser included offense of driving without a valid driver's license. See § 322.03(1), Fla. Stat. (2014) ( ); § 322.39(1), Fla. Stat. (2014) ( ); see also
Crain v. State, 79 So.3d 118, 122 (Fla. 1st DCA 2012) ( ). Concluding as a matter of law that having, at some time, a Florida driver's license is an element of a section 322.34(5) offense—the offense charged here—and considering that it was undisputed that Miller never had a Florida's driver's license, the court below granted Miller's motion and adjudicated him guilty of the lesser offense. For the following reasons, we affirm that ruling.
In doing so, we align ourselves with the First District Court of Appeal in Crain where that court concluded that in accordance with our obligation to strictly construe penal statutes, a defendant may not be convicted as a habitual traffic offender under section 322.34(5)
for driving with a suspended license when no license had ever been issued to that defendant:
“One of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter.” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991)
. “Revocation” is “the termination of a licensee's privilege to drive.” § 322.01(36), Fla. Stat. (2009) (emphasis supplied). The Second District in Carroll v. State, 761 So.2d 417, 418 (Fla. 2d DCA 2000), adopted the state's argument that “even though appellant did not have a driver's license, he did have a ‘driving privilege’ that had been revoked due to his status as a habitual traffic offender, and the revocation of this driving privilege was the equivalent of revocation of a driver's license for purposes of section 322.264, Florida Statutes (1997).” But this reads language into the statute that the Legislature did not enact.
....
(quoting State v. Aiuppa, 298 So.2d 391, 404 (Fla.1974) ).
.2
As our sister court pointed out, we need look no further than section 322.34(6)
to confirm that the legislature clearly knew how to extend a punishment to those without licenses:
; or
(b) While his or her driver's license or driving privilege is canceled, suspended, or revoked pursuant to s. 316.655, s. 322.26(8), s. 322.27(2), or s. 322.28(2) or (4), and who by careless or negligent operation of the motor vehicle causes the death of or serious bodily injury to another human being is guilty of a felony of the third degree....
(quoting § 322.34(6), Fla. Stat. (2009) ).
In sum, because Miller never has had a driver's license, he could not be convicted as a “person whose driver license has been revoked” under section 322.34(5)
. The trial court therefore properly reduced the charges against him to the lesser included offense of driving without a valid driver's license.
Finally, we note that in reaching this conclusion, we necessarily disagree with the Second, Fourth and Fifth District Courts of Appeal on this issue and therefore certify conflict with the decisions of those courts on this issue. See Carroll v. State, 761 So.2d 417 (Fla. 2d DCA 2000)
(; see also )
Newton v. State, 898 So.2d 1133, 1134 (Fla. 4th DCA 2005) ( );
State v. Bletcher, 763 So.2d 1277, 1278 (Fla. 5th DCA 2000) ( ).
Affirmed; conflict certified.
, provides:
(5) 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.
Section 322.264, as pertinent here, defines a habitual traffic offender as follows:
§ 322.264(1)(d), Fla. Stat. (2014)
.
2 A number of other state courts have come to similar conclusions as do we herein. See, e.g., State v. Sullivan, 407 Md. 493, 966 A.2d 919, 924 (2009)
(); City of Billings v. Gonzales, 331 Mont. 71, 128 P.3d 1014, 1017 (2006) (); State v. Bowie, 268 Kan. 794, 999 P.2d 947, 952 (2000) (...
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