       Third District Court of Appeal
                               State of Florida

                            Opinion filed June 1, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-628
                          Lower Tribunal No. 14-9105
                             ________________

                            The State of Florida,
                                    Appellant,

                                        vs.

                                 Daryl Miller,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch,
Judge.

      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) (providing “[e]xcept 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 license”); § 322.39(1), Fla. Stat. (2014) (providing “[i]t is a

1   Section 322.34(5), 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        (5) Any person whose driver license has been revoked pursuant to s.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:

        A “habitual traffic offender” is any person whose record . . . shows
        that such person has accumulated the specified number of convictions
        for offenses described in subsection (1) or subsection (2) within a 5-
        year period:

        (1) Three or more convictions of any one or more of the following
        offenses arising out of separate acts:

               ....

        (d) Driving a motor vehicle while his or her license is suspended or
        revoked . . . .

§ 322.264(1)(d), Fla. Stat. (2014).


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misdemeanor for any person to violate any of the provisions of this chapter, unless

such violation is declared to be otherwise by this chapter or other law of this

state”); see also Crain v. State, 79 So. 3d 118, 122 (Fla. 1st DCA 2012) (reversing

a conviction under section 322.34(5) and remanding with instructions to

“adjudicate [the defendant] guilty of the lesser included offense of driving without

a valid driver’s license”). 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


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      purposes of section 322.264, Florida Statutes (1997).” But this reads
      language into the statute that the Legislature did not enact.
             ....


      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, 79 So. 3d at 121-22. 2




2  A number of other state courts have come to similar conclusions as do we herein.
See, e.g., State v. Sullivan, 966 A. 2d 919, 924 (Md. 2009) (“Sullivan’s conviction
for driving while his license or privilege to drive was revoked was improper
because Sullivan was not privileged to drive [by being issued a driver’s license, by
being expressly exempted from the state’s licensing requirement, or by being
otherwise authorized to drive the vehicle being driven] in Maryland.”); City of
Billings v. Gonzales, 128 P. 3d 1014, 1017 (Mont. 2006) (“A reasonable and
sensible interpretation of the relevant statutory scheme leads us to conclude that a
person who does not have a privilege to drive, either through a driver’s license or
statutory licensure exemption, cannot be charged with driving while their privilege
has been suspended or revoked under § 61–5–212, MCA.”); State v. Bowie, 999 P.
2d 947, 952 (Kan. 2000) (“A reasonable and sensible interpretation of the Kansas
statutory scheme leads us to the conclusion that a person who never had a driver’s
license cannot be charged with driving while suspended pursuant to 8–262 but can
be charged with driving without a license in violation of 8–235(a).”); Francis v.
Municipality of Anchorage, 641 P. 2d 226, 228 (Alaska Ct. App. 1982) (“The
crime with which Francis was charged is driving while his license/privilege to
drive was suspended. A necessary element of this offense is that the
license/privilege have been suspended. Since Francis never had any license or
privilege to drive, there was nothing to suspend. He, therefore, could not be
convicted as charged.”); City of Aberdeen v. Cole, 537 P. 2d 1073, 1074 (Wash.
Ct. App. 1975) (“The Department of Motor Vehicles could not suspend that which
[defendant] did not have.”).

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      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:

      Any person who operates a motor vehicle:

      (a) Without having a driver’s license as required under s. 322.03; 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.
      ...

Crain, 79 So. 3d at 121 (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) (holding that a person may be

convicted of violating section 322.34(5) without ever having been issued a driver’s

license); see also Newton v. State, 898 So. 2d 1133, 1134 (Fla. 4th DCA 2005)

(affirming a section 322.34(5) conviction, citing Carroll); State v. Bletcher, 763


                                          5
So. 2d 1277, 1278 (Fla. 5th DCA 2000) (citing Carroll to support reversal of an

order dismissing a section 322.34(5) charge).

      Affirmed; conflict certified.




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