Clay County FL Habitual Traffic Offender’s Conviction Reversed

George William Crain was convicted of driving while having a suspended or revoked license as a Florida habitual traffic offender.  He appealed his conviction. Crain never had a Florida drivers license, so he never had a revoked, cancelled or suspended Florida drivers license. The Clay County State Attorney charged Crain “with driving ‘a motor vehicle upon the highways of this State, while his driver’s license or driving privilege was cancelled, suspended or revoked, pursuant to Florida Statutes, Section 322.264 (Habitual Offender), contrary to the provisions of Section 322.34(5), Florida Statutes,’ even though section 322.34(5) says nothing about any ‘driving privilege’ distinct from a driver’s license.” In order to argue that Crain could still be convicted under this Florida drivers license law, the State called Elizabeth Damguard, a Florida Department of Highway Safety and Motor Vehicles (DHSMV) employee, as a witness. Damguard “testified at trial that even a person without a driver’s license could have his ‘driving privilege’ suspended,
revoke or suspend this disembodied privilege regardless of whether the person has ever had a valid driver’s license, because DHSMV is ‘revoking and suspending the privilege to have a valid license.’” Because of this, the Clay County judge “instructed the jury that the state had to prove two elements: (1) that Mr. Crain drove a motor vehicle upon a highway in this state, and (2) that, at the time, his ‘driver’s license or driving privilege was revoked as a habitual traffic offender.'”

The Clay County jury in this habitual traffic offender trial convicted Crain of this third-degree felony under Florida Statute Section 322.34(5). This Section “does not outlaw driving by drivers never issued a license to drive. Another provision, Section 322.03(1) proscribes driving without a valid driver’s license: ‘Except as otherwise authorized in this chapter, a person may not drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license issued under this chapter.’ Driving without a valid license is a second-degree misdemeanor.”

The First District Court of Appeals which governs appeals in Clay, Duval, and Nassau county ruled that the trial court was wrong. This Florida appellate court reasoned:

“‘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. Nor can it be said that the Legislature ‘manifestly intended’ section 322.34(5) to apply to drivers who have never been issued a license, given the contrasting language in the very next subsection: Section 322.34(6), Florida Statutes (2009), applies even to drivers who have never been issued a license because subsection (6), unlike subsection (5), separately addresses the offenses of driving without a license and driving after cancelation, suspension or revocation of a driver’s ‘license or … privilege’…. In subsection (6), the Legislature drew a distinction between the act of driving without a valid driver’s license and the act of driving after cancelation, suspension or revocation of a driver’s ‘license or … privilege.’ Under subsection (5), however, because the state did not prove that Mr. Crain ever had a driver’s license, it could not prove that he drove while his driver’s license was revoked…. Although certain provisions in chapter 322 contain the term ‘driving privilege,’ the provisions that pertain to cases like the present case refer only to a ‘driver’s license,’ ‘a certificate that … authorizes an individual to drive a motor vehicle.’ § 322.01(17), Fla. Stat. (2009). It is a firmly established rule that ‘Courts must apply a statute as they find it, leaving to the legislature the correction of assorted inconsistencies and inequalities in its operation.’ Guilder v. State, 899 So.2d 412, 419 (Fla. 4th DCA 2005) (quoting State v. Aiuppa, 298 So.2d 391, 404 (Fla.1974)).” Crain v. State, 79 So. 3d 118, 121-22 (Fla. Dist. Ct. App. 2012), reh’g denied (Feb. 10, 2012)


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