          Supreme Court of Florida
                                    ____________

                                   No. SC16-1170
                                   ____________

                              STATE OF FLORIDA,
                                  Petitioner,

                                          vs.

                                 DARYL MILLER,
                                   Respondent.

                                [September 28, 2017]

QUINCE, J.

      This case is before the Court for review of the decision of the Third District

Court of Appeal in State v. Miller, 193 So. 3d 1001 (Fla. 3d DCA 2016), which

certified conflict with decisions of the Second, Fourth, and Fifth District Courts of

Appeal in Carroll v. State, 761 So. 2d 417 (Fla. 2d DCA 2000); Newton v. State,

898 So. 2d 1133 (Fla. 4th DCA 2005); and State v. Bletcher, 763 So. 2d 1277 (Fla.

5th DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the

reasons that follow, we approve the Third District’s decision below and disapprove

the conflict cases to the extent that they are inconsistent with this opinion.
                                   I. Background

      On May 21, 2014, Daryl Miller was charged with violating section

322.34(5), Florida Statutes (2017), which provides a third-degree felony penalty

for “habitual traffic offenders” who drive with a driver license that has been

revoked under section 322.264, Florida Statutes (2017). Miller filed a sworn

motion to dismiss. In support of his motion, Miller argued that he had never

possessed a Florida driver license and therefore could not be convicted pursuant to

section 322.34(5), Florida Statutes. The trial court granted Miller’s motion and

reduced his charges to driving without a valid driver license. The State appealed.

      The Third District affirmed the trial court’s order, aligning its decision with

the First District’s decision in Crain v. State, 79 So. 3d 118, 122 (Fla. 1st DCA

2012). See Miller, 193 So. 3d at 1002. The Third District concluded that

possession of a Florida driver license is a prerequisite for a section 322.34(5)

offense and certified conflict with the Second, Fourth, and Fifth District Courts of

Appeal. Id. at 1002-03. We agree with the Third and First Districts that

possession of a driver license is a prerequisite to a conviction pursuant to section

322.34(5).

                                    II. Analysis

      The plain language and construction of a statute are reviewed de novo. See

Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007). “When the statute is clear and


                                         -2-
unambiguous,” we use its plain language and avoid rules of statutory construction.

Daniels v. Fla. Dept. of Health, 898 So. 2d 61, 64 (Fla. 2005); see also W. Fla.

Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 9 (Fla. 2012). We first examine the plain

language of the section under review.

      Section 322.34(5), Florida Statutes, provides the following:

             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, Florida Statutes, defines a habitual traffic offender as a person

who has accumulated a combination of specified offenses.1 The Legislature




      1. Section 322.264, Florida Statutes, provides the following:

             “Habitual traffic offender” defined.—A “habitual traffic
      offender” is any person whose record, as maintained by the
      Department of Highway Safety and Motor Vehicles, 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:
             (a) Voluntary or involuntary manslaughter resulting from the
      operation of a motor vehicle;
             (b) Any violation of s. 316.193, former s. 316.1931, or former
      s. 860.01;
             (c) Any felony in the commission of which a motor vehicle is
      used;
             (d) Driving a motor vehicle while his or her license is
      suspended or revoked;

                                        -3-
defined driver license as “a certificate that, subject to all other requirements of law,

authorizes an individual to drive.” § 322.01(17), Fla. Stat. (2017).

      The plain language of section 322.34(5), Florida Statutes, provides that an

offender must have had his or her driver license revoked as a habitual traffic

offender in order for the felony penalty to apply. The State cannot revoke a license

that never existed. Consequently, a person cannot violate section 322.34(5)

without ever having obtained a driver license.

       The State contends that this Court must look to other sections of Chapter

322 to determine the plain meaning of “driver license” in section 322.34(5)

because the plain meaning of a word is derived from its context. The State asks us

to find “driver license” and “driving privilege” interchangeable, consistent with its

practice of charging drivers who have never had a driver license under statutes

with “driving privilege” penalties. However, statutory construction is

inappropriate because section 322.34(5) is not ambiguous.




             (e) Failing to stop and render aid as required under the laws of
      this state in the event of a motor vehicle crash resulting in the death or
      personal injury of another; or
             (f) Driving a commercial motor vehicle while his or her
      privilege is disqualified.
             (2) Fifteen convictions for moving traffic offenses for which
      points may be assessed as set forth in s. 322.27, including those
      offenses in subsection (1).

                                         -4-
      Even if section 322.34(5) were ambiguous as the State contends, the canons

of statutory construction do not support the State’s interpretation. One rule of

construction this Court employs is the principle of in pari materia, which provides

that statutes with similar subjects should be construed together to synchronize their

meaning and give effect to the intent of the Legislature. See Patrick v. Hess, 212

So. 3d 1039, 1042 (Fla. 2017). This Court also endeavors to give meaning to each

word of a statute rather than treat any word as “mere surplusage.” Heart of

Adoptions, Inc. v. J.A., 963 So. 2d 189, 198-99 (Fla. 2007). Where the Legislature

enumerates items to the exclusion of others, the canon of construction expressio

unius est exclusio alterius encourages the interpretation that the Legislature

purposefully excluded items not mentioned. Thayer v. State, 335 So. 2d 815, 817

(Fla. 1976). With these principles in mind, we turn to the statutes.

      A person operating a motor vehicle on the roads of this State must possess a

valid license issued by the State of Florida or fall under an exception to licensure.

§ 322.03(1), Fla. Stat. (2017). One exception includes nonresidents who possess a

valid driver license issued by their home states. §§ 322.04(1)(c)-(d), Fla. Stat.

(2017). Exceptions also exist for federal government employees operating a

government vehicle for official business, any person operating a road machine or

tractor, and any person operating a golf cart. §§ 322.04(1)(a)-(b), (e), Fla. Stat.

(2017).


                                         -5-
      Considering these sections in pari materia, the Legislature’s use of “driving

privilege” refers to all the individuals who may lawfully operate vehicles on

Florida’s roads, even if they do not possess a Florida driver license. Individuals

like Miller, who drive in Florida without ever having obtained a license or having

an exemption to licensure, do not have any “driving privilege.” We cannot find

that both terms mean the same thing because doing so improperly treats the words

as “mere surplusage.” Heart of Adoptions, 963 So. 2d at 198-99.

      Individuals like Miller are guilty of a second-degree misdemeanor for

violation of section 322.03, Florida Statutes. See § 322.39, Fla. Stat. (2017). The

Legislature has not articulated enhanced penalties for individuals who accumulate

multiple violations of section 322.03. The statute under review, section 322.34(5),

Florida Statutes, only provides enhanced penalties for individuals who continue to

drive after having had a valid driver license revoked.

      In contrast, the statute criminalizing driving under the influence (DUI)

targets any person “driving or in actual physical control of a vehicle” while

impaired by alcohol or other substances, including individuals who drive without

ever having obtained a license and those who drive without having an exemption to

licensure. See § 316.193, Fla. Stat. (2017). In addition, section 322.34(6)(a),

Florida Statutes, contemplates a felony penalty for any person who has never

obtained a license who kills or causes bodily injury to someone while driving. The


                                        -6-
Legislature could have included individuals who do not have a license or exception

to licensure along with license holders in section 322.34(5) as it did in other

subsections. See Thayer, 335 So. 2d at 817. It did not do so.

                                   III. Conclusion

      Having a driver license that has been revoked under the habitual traffic

offender statute, section 322.264, Florida Statutes, is a necessary element of a

section 322.34(5) offense. Therefore, defendants who have never possessed a

driver license may not be charged under section 322.34(5). We approve the Third

District’s decision below and disapprove the conflict cases to the extent that they

are inconsistent with this opinion.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and LAWSON, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., dissenting.

      As part of a plea agreement in a separate case, the State has agreed that even

if it were to prevail here and the charged violation of section 322.34(5) were to be

reinstated against Miller, it will not continue to prosecute Miller for a violation of

section 322.34(5) in this case. The question of whether Miller can be convicted of

violating section 322.34(5) therefore is now moot. Because the parties are seeking


                                         -7-
a purely advisory opinion—an opinion that has no bearing on the disposition of

this case—I would dismiss this proceeding. “It is the function of a judicial tribunal

to decide actual controversies by a judgment which can be carried into effect, and

not . . . to declare principles or rules of law which cannot affect the matter in

issue.” Montgomery v. Dep’t of Health & Rehab. Servs., 468 So. 2d 1014, 1016-

17 (Fla. 1st DCA 1985).

      Contrary to the State’s claims, this case does not fall in the category of cases

“capable of repetition yet evading review.” Johnson v. State, 60 So. 3d 1045, 1049

(Fla. 2011) (quoting State v. Matthews, 891 So. 2d 479, 484 (Fla. 2004)). The

State itself is wholly responsible for rendering this case moot. A party should not

be heard to assert that a recurring issue will evade review when that party itself has

rendered moot the case presenting the issue for review. Accordingly, I dissent.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

      Third District - Case No. 3D15-628

      (Miami-Dade County)

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau
Chief, Michael W. Mervine, and Marlon J. Weiss, Assistant Attorneys General,
Miami, Florida,

      for Petitioner




                                         -8-
Carlos J. Martinez, Public Defender, John Eddy Morrison, and Shannon
Hemmendinger, Assistant Public Defenders, Eleventh Judicial Circuit, Miami,
Florida,

      for Respondent




                                     -9-
