Opinion
Case No. 4D02-2050
Opinion filed August 27, 2003.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Robert R. Makemson, Judge; L.T. Case No. 01-1493CFMA.
Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
Woodrow Sorrell appeals his conviction of driving while his license was permanently revoked, contrary to section 322.341, Florida Statutes (2001). Although we reject appellant's attacks upon the evidence at trial, we reverse appellant's conviction in light of Florida Department of Highway Safety Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla. 2003).
Section 322.341 provides:
Any person whose driver's license or driving privilege has been permanently revoked . . . and who drives a motor vehicle upon the highways of this state is guilty of a felony of the third degree. . . .
Sorrell was convicted of other crimes at trial which are not at issue on this appeal.
Contrary to appellant's argument, at the non-jury trial, the state proved by competent evidence that appellant's license had been revoked. A copy of his driving record was properly admitted pursuant to section 322.201, Florida Statutes (2001). Notice of the revocation was established pursuant to section 322.251(2), Florida Statutes (2001).See State v. Tucker, 832 So.2d 218, 218-19 (Fla. 2d DCA 2002) (holding that computerized driving record is sufficient to establish a prima facie case that defendant's driver's license has been revoked, and that indication of notice in record is sufficient evidence that the defendant received notice of the revocation); Rodgers v. State, 804 So.2d 480, 483 (Fla. 4th DCA 2001).
It was not necessary for the state to prove at trial the DUI convictions which formed the basis for the license revocation. Appellant cites to cases under the DUI statute, where previous convictions constitute an element of the crime charged. See Jackson v. State, 788 So.2d 373, 374 (Fla. 4th DCA 2001) review denied, 807 So.2d 654 (Fla. 2002); Coyne v. State, 775 So.2d 969, 969-70 (Fla. 4th DCA 2000) (holding that jury must consider whether the defendant has been convicted of the three prior DUIs before concluding the defendant is guilty of felony DUI). Here, it is the existence of the revocation which is an element of the crime charged, not the prior DUI convictions.
Section 316.193(2)(b)1., Florida Statutes (2001) provides that:
Any person who is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section commits a felony of the third degree. . . .
Confronting a statute similar to the one at issue in this case, this court has disposed of an argument identical to the one appellant makes here. Section 322.34(5), Florida Statutes (2001), prohibits driving while license is suspended (DWLS) as an habitual offender. See Rodgers, 804 So.2d at 483. We held in Rodgers that the statute did not involve — as an element of the crime — a finding that the motorist has been convicted on three separate occasions of DWLS. Instead it involves driving a motor vehicle on the public highways of Florida at a time when DMV has revoked the motorist's license and given notice of the revocation. Thus it is not necessary for the state to prove each separate conviction of DWLS which DMV relied on in revoking the license.
Id. (emphasis added). We wrote in Rodgers , [t]o sum up the requirements for a conviction under section 322.34, the statute as written by the Legislature merely makes it necessary for the state to prove by competent evidence that DMV maintains a record on the motorist, that its record shows the requisite three separate DWLS convictions within a 5 year period, and that DMV gave the motorist the statutory notice. These statutes permit the state to make this proof by presenting a certified copy of the motorist's driving record maintained by DMV. That is what the state did in its prosecution in this case. Hence the state made out a prima facie case, which allowed the trier of fact to find defendant guilty of the section 322.34(5) violation.Id.; see also State v. Fields, 809 So.2d 99, 101 (Fla. 2d DCA 2002) (following Rodgers). Because the statute in Rodgers is so similar to section 322.341, Rodgers compels the conclusion that in this case the state made a prima facie case by introducing a copy of the driving record which showed the requisite permanent revocation on its face.
We note that the proper remedy for a person who feels that his or her driver's license was improperly revoked is to have the record corrected, "not to ignore the revocation and continue to drive." Arthur v. State , 818 So.2d 589, 591 (Fla. 5th DCA 2002).
It is appellant's second argument that has merit. In Critchfield, the supreme court declared that Chapter 98-223, Laws of Florida, violated the single subject rule in Article III, Section 6 of the Florida Constitution. Section 13 of Chapter 98-223 created the crime at issue in this case, driving under a permanent license revocation, a third degree felony. The supreme court's decision turned on section 2 of Chapter 98-223, which created section 832.10, involving a payee's placement of a worthless check for collection by a private debt collector prior to presenting the check to the state attorney for prosecution. The supreme court wrote that section 2 had "no natural or logical connection to driver's licenses, operation of motor vehicles, or vehicle registrations. Thus, we conclude that chapter 98-223 violates the single subject rule." Critchfield, 842 So.2d at 786. Because the statute creating section 322.341 is unconstitutional, appellant cannot be convicted of that crime. See McCormick v. State, 826 So.2d 476, 477 (Fla. 5th DCA 2002).
The next question is what happens to appellant's conviction once section 322.341 is declared unconstitutional, rendering the charge a non-existent crime. At trial, the court did not instruct the jury on any lesser included offenses to the section 322.341 charge. Therefore, appellant may not be retried on any lesser included offenses of section 322.341. See State v. Gibson, 682 So.2d 545 (Fla. 1996); followed upon remand, 685 So.2d 76, 77 (Fla. 1st DCA 1996).
Driving without a valid driver's license contrary to section 322.03(1), Florida Statutes (2001) is a necessarily lesser included offense of section 322.341. We arrive at this conclusion by applying Hagood v. State , 824 So.2d 252 (Fla. 4th DCA 2002). In that case, we held that driving without a valid driver's license contrary to section 322.03(1) was a necessarily lesser included offense of driving with a revoked license under section 322.34(5), Florida Statutes (2000). As noted above, section 322.34(5) is similar to section 322.341.
The judgment and sentence for the conviction of section 322.341 are reversed and remanded for discharge.
POLEN and WARNER, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.