            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                 _____________________________

                        Nos. 1D17-1781
                             1D17-1782
                 _____________________________

JOHN EUGENE WILLIAMS, III,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the County Court for Alachua County.
Walter M. Green, Judge.

                          April 18, 2018


LEWIS, J.

     Appellant, John Eugene Williams, III, challenges in these
consolidated cases his convictions for violating section
322.34(2)(b), Florida Statutes (2016), which makes it a first-degree
misdemeanor for a person, except a habitual traffic offender, to
obtain a second conviction for driving a motor vehicle while
knowing that his or her driver’s license or driving privilege has
been canceled, suspended, or revoked. Appellant contends that the
trial court erred by denying his motion to dismiss the charges
because the only offense with which he can be charged is driving
without a valid driver’s license given that he is a habitual traffic
offender and he has never had a Florida driver’s license and does
not fall within a statutory exemption to the licensure requirement.
For the foregoing reasons, we agree and, therefore, reverse and
remand.

     Appellant entered a plea of no contest to two charges of
violating section 322.34(2)(b), while expressly reserving his right
to appeal the denial of his motion to dismiss the charges. In his
motion to dismiss, filed pursuant to Florida Rule of Criminal
Procedure 3.190(c)(4), Appellant argued that he could only be
charged with driving without a valid driver’s license because he
was a habitual traffic offender and he did not have a driver’s
license or driving privilege. Specifically, Appellant contended that
he did not have a driving privilege because he did not have a
Florida driver’s license and he did not fall within a statutory
exemption to the licensing requirement. The State did not dispute
Appellant’s status as a habitual traffic offender and admitted that
he has never had a driver’s license. The trial court denied the
motion upon finding that a person who has never been issued a
driver’s license by any government nevertheless has a driving
privilege that can be suspended or revoked and that such person
can, therefore, be convicted under section 322.34(2). The court
reasoned that Appellant’s interpretation of the statutorily
undefined term “driving privilege” in section 322.34(2) allows
persons who have never had a driver’s license to escape
punishment due to imprecise statutory drafting, elevates an
unlicensed driver to a legally superior position over a licensed
driver, and contravenes the Legislature’s intent to foster public
highway safety.

     However, recognizing that there was support for Appellant’s
interpretation in the case law and in chapter 322, the trial court
certified the following two questions as being of great public
importance:

         1: Does a person who has never had a driver’s license
    issued to them by any government (state, federal, or
    foreign), and who is not exempt under section 322.04,
    have a ‘driving privilege’ in the State of Florida?

        2: If the answer to Question One is no, can that
    person nonetheless be convicted of DWLSR, in violation
    of either section 322.34(1) or section 322.34(2), if

                                 2
    DHSMV[ 1] has suspended or revoked that person’s
    privilege to obtain a valid driver’s license?

     We have jurisdiction pursuant to Florida Rules of Appellate
Procedure 9.030 and 9.160, and we rephrase the certified questions
as follows: Does a person who has never had a Florida driver’s
license and who is not exempt from the licensing requirement
under section 322.031 or section 322.04, Florida Statutes, have a
“driving privilege” such that he or she can be convicted under
section 322.34(1) or section 322.34(2), Florida Statutes? We
answer the rephrased certified question in the negative.

     The purpose of a motion filed pursuant to Florida Rule of
Criminal Procedure 3.190(c)(4) is to determine whether the
undisputed facts the State will rely on establish a prima facie case,
as a matter of law, so as to permit a jury to find the defendant
guilty of the charged crime. State v. Depriest, 180 So. 3d 1099,
1100 (Fla. 1st DCA 2015). A trial court’s ruling on a motion to
dismiss is reviewed de novo.          Id.  Questions of statutory
construction are also reviewed de novo. W. Fla. Reg’l Med. Ctr.,
Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012).

     The polestar of statutory construction is legislative intent. Id.
at 8. To discern legislative intent, the court must first look to the
plain and obvious meaning of the statute’s text, which may be
discerned from a dictionary. Id. at 9. If the statutory language is
clear and unambiguous, the court must apply that unequivocal
meaning and may not resort to the rules of statutory construction.
Id. The court must give full effect to all statutory provisions and
avoid readings that would render a part of a statute meaningless;
additionally, the court may not construe an unambiguous statute
in a way that would extend, modify, or limit its express terms or
its reasonable and obvious implications. Bennett v. St. Vincent’s
Med. Ctr., Inc., 71 So. 3d 828, 838 (Fla. 2011). If an ambiguity
exists, however, the court should look to the rules of statutory
construction to help interpret legislative intent. See, 79 So. 3d at
9.



    1   Department of Highway Safety and Motor Vehicles.

                                  3
     “Except as otherwise authorized in [chapter 322, titled ‘Driver
Licenses’], a person may not drive any motor vehicle upon a
highway in this state unless such person has a valid driver license
issued under this chapter.” § 322.03(1), Fla. Stat. (2016); see also
§ 322.39(1), Fla. Stat. (2016) (“It is a 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.”). Sections 322.031 and 322.04 set forth exceptions to
the Florida driver’s license requirement, which include
nonresidents who possess a valid driver’s license issued by their
home state. §§ 322.031, 322.04, Fla. Stat. (2016).

    Section 322.34 provides in part as follows:

         (1) Except as provided in subsection (2), any person
    whose driver license or driving privilege has been
    canceled, suspended, or revoked, except a “habitual traffic
    offender” as defined in s. 322.264, who drives a vehicle
    upon the highways of this state while such license or
    privilege is canceled, suspended, or revoked is guilty of a
    moving violation, punishable as provided in chapter 318.

         (2) Any person whose driver license or driving
    privilege has been canceled, suspended, or revoked as
    provided by law, except persons defined in s. 322.264, who,
    knowing of such cancellation, suspension, or revocation,
    drives any motor vehicle upon the highways of this state
    while such license or privilege is canceled, suspended, or
    revoked, upon:

         ....

         (b) A second conviction is guilty of a misdemeanor of
    the first degree, punishable as provided in s. 775.082 or s.
    775.083.

§ 322.34, Fla. Stat. (2016) (emphases added); see § 322.01(5), (17),
(36), (40), Fla. Stat. (2016) (defining “[d]river license” as “a
certificate that, subject to all other requirements of law, authorizes
an individual to drive a motor vehicle and denotes an operator’s
license as defined in 49 U.S.C. s. 30301,” “[c]ancellation” as “the

                                  4
act of declaring a driver license void and terminated,”
“[r]evocation” as “the termination of a licensee’s privilege to drive,”
and “[s]uspension” as “the temporary withdrawal of a licensee’s
privilege to drive a motor vehicle”) (emphases added); see also §
322.264(1)(d), Fla. Stat. (2016) (defining “habitual traffic offender”
as a person whose record shows that he or she has accumulated
three or more convictions within a five-year period for “[d]riving a
motor vehicle while his or her license is suspended or revoked”)
(emphasis added). The Legislature did not define the term
“driving privilege.” Cf. MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/privilege (last visited Jan. 11, 2018)
(defining “privilege” as “a right or immunity granted as a peculiar
benefit, advantage, or favor”).

     Based on the clear and unambiguous language of the statute,
a defendant who is a habitual traffic offender cannot be prosecuted
under section 322.34(2). Finney v. State, 219 So. 3d 254, 256 (Fla.
1st DCA 2017). Moreover, “[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.” State v.
Miller, 227 So. 3d 562, 564 (Fla. 2017) (citing section 322.03(1)).
Considering sections 322.03 and 322.04 in pari materia, the term
“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.” Id. at 564. A person who does not have a
Florida driver’s license and who does not fall within a statutory
exemption to licensure does not have any driving privilege and is
guilty of driving without a valid driver’s license, a violation of
section 322.03. Id. at 564-65 (noting that the Legislature has not
created enhanced penalties for persons who accumulate multiple
violations of section 322.03); see also Burgess v. State, 198 So. 3d
1151, 1156-58 (Fla. 2d DCA 2016) (en banc) (interpreting “driving
privilege” as “encompass[ing] an individual’s ability to operate a
motor vehicle in accord with law” and “at least includ[ing] both the
ability to drive as conferred by a driver’s license and the legal
ability to drive as conferred by an exemption from licensure”).

   Turning to the cases before us, the trial court erred by denying
Appellant’s motion to dismiss for two independent reasons. 2 First,


    2   We note that the trial court did not have the benefit of Finney
                                   5
given that it is undisputed that Appellant is a habitual traffic
offender, he cannot be convicted under section 322.34(2). 3 See §
322.34(2), Fla. Stat.; see also Finney, 219 So. 3d at 256. Second,
given that it is undisputed that Appellant has never had a Florida
driver’s license and he does not fall within a statutory exemption
to the licensure requirement, he cannot be convicted under section
322.34(2). In light of Miller, we answer the rephrased certified
question in the negative and conclude that a person who has never
had a Florida driver’s license and who is not exempt from the
licensing requirement under section 322.031 or section 322.04 does
not have a driving privilege such that he or she can be convicted
under section 322.34(1) or section 322.34(2). A driver’s license or
driving privilege that does not exist cannot be canceled,
suspended, or revoked.

    Although in Miller, the Florida Supreme Court was called
upon to resolve the conflict among the district courts of appeal


or Miller as its order denying Appellant’s motion preceded those
decisions.
    3  In Finney, we questioned whether the petitioner actually
met the statutory definition of a “habitual traffic offender” given
that his designation was based on convictions for driving while his
driving privilege was suspended or revoked, whereas section
322.264(1)(d) requires convictions for driving while the offender’s
license is suspended or revoked.        219 So. 3d at 255 n.3.
Nevertheless, we considered the petitioner a habitual traffic
offender for the purposes of the case because the State did not
dispute his assertion that he was one. Id. Likewise, here, the
State did not deny in its traverse and demurrer, at the hearing on
the motion to dismiss, or now on appeal that Appellant is a
habitual traffic offender. To the contrary, in making a sentence
recommendation, the State argued that Appellant was a habitual
traffic offender. Appellant’s driver record reflects that he was
designated as a habitual traffic offender in 2001 and that he had
five convictions between 1999 and 2003, and two additional ones
in 2015, for driving while his driving privilege was suspended or
revoked. Given such, we consider Appellant a habitual traffic
offender for the purposes of these cases.

                                6
about whether a person who has never possessed a driver’s license
may be charged under section 322.34(5), Florida Statutes, 4 and
held that he or she may not, its interpretation of the Legislature’s
use of the term “driving privilege” is unequivocal and applicable to
our cases. Additionally, we agree with the Florida Supreme
Court’s interpretation of “driving privilege” as deriving from a
Florida driver’s license or a statutory exemption.

      The language of section 322.34(2) is not clear and
unambiguous as to the meaning of the term “driving privilege”;
thus, resort to the rules of statutory construction is warranted.
One such rule is the doctrine of in pari materia, which requires
that statutes with similar subjects be construed together so as to
harmonize their meaning and give effect to the Legislature’s
intent. Miller, 227 So. 3d at 564. The Legislature made clear that
it is unlawful to drive a motor vehicle on Florida highways without
a valid Florida driver’s license, except as otherwise authorized by
chapter 322. See §§ 322.03(1), 322.39(1), Fla. Stat. Chapter 322
in turn sets forth specific exemptions to the Florida licensing
requirement, such as for nonresidents, members of the army, and
federal government employees. See §§ 322.031, 322.04, Fla. Stat.
As Appellant persuasively argues, if the State’s position were
correct and people had an innate privilege to drive, there would be
no need for obtaining a license and persons could not be punished
for driving without one. Also, Florida courts have consistently
stated that a license to drive is a privilege, not a right, that is
subject to regulation. Bolware v. State, 995 So. 2d 268, 274 (Fla.
2008). In addition, several statutes within chapter 322 indicate
that “driving privilege” encompasses “driver license.” See, e.g., §
322.0261(2), Fla. Stat. (2016) (requiring the cancellation of certain
operators’ driver’s license if they fail to maintain their driving
privileges by attending a driver improvement course); § 322.058,
Fla. Stat. (2016) (requiring in subsection (1) the suspension of the
“driver license” of a person who has a delinquent support


    4    Section 322.34(5) provides that “[a]ny 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
. . . .” § 322.34(5), Fla. Stat. (2016) (emphasis added).

                                  7
obligation or has failed to comply with certain orders, but requiring
in subsection (2) the reinstatement of the person’s “driving
privilege” under certain circumstances); § 322.091(1), Fla. Stat.
(2016) (seemingly equating “driving privileges” with “driver
license or learner’s driver license”); § 322.271(1)(b), Fla. Stat.
(2016) (stating, “[a] person whose driving privilege has been
revoked under s. 322.27(5),” but section 322.27(5) speaks only of
the revocation of a driver’s license). Similarly, several statutes
indicate that “driving privilege” is something that is granted to
persons by the government, such as to nonresidents. See, e.g., §
322.03(1), Fla. Stat. (prohibiting driving without a valid Florida
driver’s license unless “authorized”); § 322.056, Fla. Stat. (2016)
(speaking in terms of a person being “eligible by reason of age for
a driver license or driving privilege” and requiring the courts to
direct the DHSMV “to withhold issuance of [a minor’s] driver
license or driving privilege” under certain circumstances); §
322.091(1), Fla. Stat. (setting forth “eligibility requirements for
driving privileges” for minors); § 322.263(2), Fla. Stat. (2016)
(declaring the legislative intent to “[d]eny the privilege of
operating motor vehicles” to persons who have demonstrated their
indifference to the safety of others and their disrespect for the laws
and orders); § 322.23(1), Fla. Stat. (2016) (stating, “[t]he privilege
of driving . . . given to a nonresident”); § 322.271(1)(a), Fla. Stat.
(stating, “a person who is ineligible to be granted the privilege of
driving”).

     Moreover, under the principle of statutory construction
expressio unius est exclusio alterius, the mention of one thing
implies the exclusion of another. Miller, 227 So. 3d at 564. Unlike
section 322.34(2), which speaks only of a “driver license or driving
privilege,” section 322.34(6) expressly distinguishes between
persons operating a vehicle “[w]ithout having a driver license as
required under s. 322.03” and “[w]hile . . . driver license or driving
privilege is cancelled, suspended, or revoked,” which indicates that
the Legislature did not intend section 322.34(2) to apply to persons
who have never had a license. See § 322.34(6), Fla. Stat. (2016)
(making it a third-degree felony for a person who operates a motor
vehicle “without having a driver license as required under s.
322.03; or [w]hile his or her driver license or driving privilege is
canceled, suspended, or revoked” to cause death or serious bodily
injury to another by the careless or negligent operation of the

                                  8
vehicle). Another applicable principle of statutory construction is
the rule of lenity, which posits that a criminal statute must be
strictly construed and when its language is susceptible to differing
constructions, it shall be construed most favorably to the accused.
See State v. Weeks, 202 So. 3d 1, 10 (Fla. 2016) (citing section
775.021(1), Florida Statutes).

     Interpreting “driving privilege” as authorization to drive
pursuant to a valid Florida driver’s license or a statutory
exemption is consistent with the dictionary definition of “privilege”
and with the statutory scheme in chapter 322 and gives full effect
to all statutory provisions. The trial court’s reason for denying
Appellant’s motion to dismiss, and the State’s primary argument,
is that under that interpretation, an unlicensed driver is punished
less harshly than a licensed driver and the Legislature’s intent to
foster highway safety is not carried out. As we did in Finney, we
again recognize that there appears to be “a gaping loophole in
section 322.34” and reiterate that it is firmly established that
courts must apply a statute as they find it and leave to the
Legislature the correction of inconsistencies and inequalities in its
operation. 219 So. 3d at 256 (“[B]ecause Finney cannot be
prosecuted as a habitual traffic offender under section 322.34(5)
since he has never been issued a driver’s license, we agree with the
trial court’s observation that the result in this case ‘goes against
public policy and neglects public safety.’ Indeed, there appears to
be a gaping loophole in section 322.34 because as the statute is
written, an offender who is a habitual traffic offender but who has
never had a driver’s license can escape felony punishment and
receive a lesser punishment than a habitual traffic offender who
had obtained a license.”).

    Therefore, we reverse and remand with instructions to vacate
Appellant’s convictions under section 322.34(2)(b) and adjudicate
him guilty of the lesser-included offenses of driving without a valid
driver’s license.

    REVERSED and REMANDED.

B.L. THOMAS, C.J., and MAKAR, J., concur.




                                 9
                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Andy Thomas, Public Defender, Lori A. Willner, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




                              10
