Florida/Georgia Personal Injury & Workers Compensation

...t itself cure the error since the court, by overruling the objection indicated to the jury that weakened faculties were synonymous with impaired faculties. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. PETERSON and PALMER, JJ., concur. NOTES [1] § 322.341, Fla.Stat....

...nt of the period of suspension or revocation of driver's licenses for incarcerated offenders while section 12 amends section 322.34, Florida Statutes dealing with driving while license suspended, revoked, canceled or disqualified. Section 13 creates section 322.341, Florida Statutes which makes it a third degree felony to drive while a license is permanently revoked....

...Background Appellee was charged with driving under the influence after having been convicted of DUI on three or more prior occasions, pursuant to section 316.193(2)(b)3, Florida Statutes (2005), and driving while license permanently revoked, pursuant to section 322.341, Florida Statutes (2005)....

...nt of the period of suspension or revocation of driver's licenses for incarcerated offenders while section 12 amends section 322.34, Florida Statutes dealing with driving while license suspended, revoked, canceled or disqualified. Section 13 creates section 322.341, Florida Statutes which makes it a third degree felony to drive while a license is permanently revoked....

...Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee. KLEIN, J. Appellant was convicted of a third-degree felony, driving after his license had been permanently revoked, which violates section 322.341, Florida Statutes (2000)....

...Critchfield, 805 So.2d 1034 (Fla. 5th DCA 2002), in which the fifth district held this statute unconstitutional because it was part of Chapter 98-233, Laws of Florida, which violates the single subject rule. We respectfully disagree with Critchfield and affirm. Section 322.341 became effective July 1, 1998 by virtue of section 8 of Chapter 98-233, Laws of Florida....

...d, and we affirm the denial of the remaining five claims without discussion. Based on events that occurred on November 7, 2001, and January 3, 2002, the State charged Pass with two counts of driving while license permanently revoked, in violation of section 322.341, Florida Statutes (2001). Pass entered an open plea of guilt, and the trial court sentenced him to concurrent terms of five years in prison on these charges. [2] Pass correctly contends that he is entitled to have these convictions and sentences vacated because section 322.341 was unconstitutional at the time of the alleged offenses....

...In Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003), the supreme court held that chapter 98-223, Laws of Florida, violated the single subject rule and was unconstitutional. Section 13 of chapter 98-223 created section 322.341, prohibiting driving while a license is permanently revoked....

...The Gillman court recognized that a defendant "cannot lawfully be charged under an unconstitutional statute." Id. at 1100. In Sorrell v. State, 855 So.2d 1253, 1255-56 (Fla. 4th DCA 2003), the Fourth District stated, "Because chapter 98-223, the statute creating section 322.341, is unconstitutional, appellant cannot be convicted of that crime." The court explained that section 322.341 became "non-existent when the supreme court decided in Critchfield that Chapter 98-223 failed to meet constitutional muster." Id....

...ON MOTION FOR REHEARING AND CLARIFICATION GROSS, J. We grant the State's motion for rehearing and clarification, withdraw our previous opinion, and substitute the following. Woodrow Sorrell appeals his conviction of driving while his license was permanently revoked, contrary to section 322.341, Florida Statutes (2001)....

...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....

...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 chapter 98-223, the statute creating section 322.341, is unconstitutional, appellant cannot be convicted of that *1256 crime. See McCormick v. State, 826 So.2d 476, 477 (Fla. 5th DCA 2002). The next question is what happens to this case once section 322.341 is declared unconstitutional, rendering that count of the information a non-existent crime....

...Gibson, 682 So.2d 545 (Fla.1996), followed upon remand, 685 So.2d 76, 77 (Fla. 1st DCA 1996), would control. Gibson involved a criminal offense which only became "non-existent" when the supreme court decided State v. Gray, 654 So.2d 552 (Fla.1995). See State v. Wilson, 680 So.2d 411, 412 (Fla.1996). Here, section 322.341 became similarly non-existent when the supreme court decided in Critchfield that Chapter 98-223 failed to meet constitutional muster....

...y of a lesser included offense only when the parties argue to the court that guilt on a lesser charge is a potential outcome. Unlike a jury, a judge is presumed to know of all lesser included offenses. The judgment and sentence for the conviction of section 322.341 are reversed. The case is remanded for a new trial on any offense that falls under rule 3.510(b). POLEN and WARNER, JJ., concur. NOTES [1] Section 322.341 provides: Any person whose driver's license or driving privilege has been permanently revoked......

...to ignore the revocation and continue to drive." Arthur v. State, 818 So.2d 589, 591 (Fla. 5th DCA 2002). [5] 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....

...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.

...Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee. PLEUS, C.J. Kevin Galston appeals his conviction for driving while his license was permanently revoked, in violation of section 322.341, Florida Statutes (2005)....

...Despite the undisputed allegations and testimony that the road was closed to the public, the trial court relied on section 633.021(12), Florida Statutes (2005), and found that the area was a highway that was temporarily closed for construction. This was error because section 633.021(12) does not apply. The term "highway" in section 322.341 is specifically defined in section 322.01(38)....

...chapter, " meaning Chapter 633. § 633.021, Fla. Stat. (2004) (emphasis added). In similar fashion, the Legislature expressly directed that the definition of "highway" found in section 322.01(38) shall be used to define the term "highway" as used in section 322.341. Thus, the Legislature expressly prohibited the use of the definition in section 633.021(12) to define the term "highway" in section 322.341....

...Charlie Crist, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. The State's information charged Appellant with driving a motor vehicle on or around February 27, 2002, while his driver's license was permanently revoked, in violation of section 322.341, Florida Statutes. Appellant filed a motion to dismiss the information on the ground that the statute on which he was to be prosecuted is unconstitutional. Specifically, the motion alleged that sections 2 and 13 of chapter 98-223, Laws of Florida (which created § 322.341, Fla....

...provision as part of the biennial adoption of the Florida Statutes." Tormey v. Moore, 824 So.2d 137, 142 (Fla. 2002). The relevant reenactment occurred and became effective upon publication on May 21, 2003. See ch. 03-25, § 1, at 206, Laws of Fla. Section 322.341, Florida Statutes, the provision under which Appellant was charged, was added pursuant to chapter 98-223, § 13, Laws of Florida, effective July 1, 1998....

...ot apply to respondent Leukel because he is not charged with committing one of the enumerated offenses therein. On 3 April 2006, Leukel was arrested in Seminole County for driving after his license was permanently revoked, a third-degree felony. See § 322.341, Fla....

...Because Leukel was an assistant public defender in the Eighteenth Judicial Circuit, on 2 May 2006, the Governor of the State of Florida assigned the State Attorney for the Ninth Judicial Circuit as prosecutor for the case. On 1 June 2006, the State filed a two-count information alleging that Leukel violated section 322.341 by driving while his license was permanently revoked, and section 322.34(2)(b) by driving while his license was revoked as a subsequent offender....

...Dunlevy, Assistant Attorney General, Tampa, for Appellant. Charles R. Mayer, Highland City, for Appellee. ALTENBERND, Judge. The State appeals an order dismissing the information that charged Franklin Harrison Rothauser with driving while his license was permanently revoked in violation of section 322.341, Florida Statutes (2004)....

...of adopting the law as an official statute that is published in the Florida Statutes. Because Mr. Rothauser allegedly violated this law after it had become an official statute, we must reverse the trial court's ruling and reinstate the information. Section 322.341 was enacted by the legislature as section 13 of chapter 98-223 of the Laws of Florida....

...Scinta, 828 So.2d 486 (Fla. 2d DCA 2002). Thereafter, the supreme court resolved the conflict by approving the Fifth District's decision and holding the statute unconstitutional. Critchfield, 842 So.2d 782. Thus, Mr. Rothauser would be correct that section 322.341 was unconstitutional at the time of his offense unless the defect in the law had been cured prior to that time....

...as the published "official statute law of the state under the title of `Florida Statutes (date).' " Although this process has traditionally occurred biennially, the 1999 amendment contained qualifying language that did not result in a reenactment of section 322.341, see ch. 99-10, Laws of Fla., and no enactment of a general revision occurred in 2001. The legislature did, however, formally adopt and enact the official statutes of Florida in 2003, including section 322.341....

...Fountain, 883 So.2d 300 (Fla. 1st DCA 2004). We must concur with the First District that the enactment of a "law," i.e. chapter 2003-25, transformed an earlier unconstitutional law, chapter 98-225, into a constitutional statute under the rule established in Badgett. Thus, section 322.341 became a valid statute on July 1, 2003, and was effective on the date of Mr....

...Finelli, 780 So.2d 31, 33 (Fla.2001); State v. Woodruff, 676 So.2d 975, 977 (Fla.1996). Applying that same reasoning to DWLR, the fact that Gonse's license was permanently revoked is an element of the offense and is not used as a sentence enhancement. See § 322.341, Fla....

...the police and McCormick was consensual, we affirm the denial of the motion to suppress without further discussion. We do find merit in McCormick's contention that his conviction for driving after his license had been permanently revoked pursuant to section 322.341, Florida Statutes (2001), is erroneous based on our opinion in Department of Highway Safety & Motor Vehicles v. Critchfield, 805 So.2d 1034 (Fla. 5th DCA), review granted, No. 02-386 (Fla. Apr. 24, 2002). In Critchfield, decided after the trial judge's ruling, we held chapter 98-223, which enacted section 322.341, to be unconstitutional....

...Based on Critchfield, we vacate McCormick's conviction for driving after his license was permanently revoked and certify conflict with Sawyer. In all other respects, we affirm McCormick's convictions and sentences. AFFIRMED IN PART, VACATED IN PART AND CONFLICT CERTIFIED. SHARP, W. and HARRIS, JJ., concur. NOTES [1] § 322.341, Fla....

...Doran, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellant. James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellee. *215 NORTHCUTT, Judge. Ralph Earl Miller was charged with violating section 322.341, Florida Statutes (2000), which makes it unlawful to drive after one's license has been permanently revoked pursuant to sections 322.26 or 322.28....

...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 [.]" The statute under which Miller was charged in this case, section 322.341, provides that "[a]ny person whose driver's license or driving privilege has been permanently revoked pursuant to s....

...notice of the revocation by mail. That statute also provides that notation of the giving of the notice in the DMV's records is sufficient proof that the notice was given. § 322.251(2). Consistent with Fields, we conclude that in a prosecution under section 322.341, the State may make a sufficient prima facie showing that the defendant's license was permanently revoked and that he was given notice of the revocation by introducing a certified copy of the defendant's driving record maintained by the Department of *216 Highway Safety and Motor Vehicles....

...r his refusal. Lamore was also charged with DUI and DWLR. Significantly, Florida’s DUI and DWLR statutes not only apply to a person “driving,” but also to persons in “actual physical control” of a vehicle. §§ 316.193(1), 322.01(15) & 322.341, Fla....

...the evidence and the merits by the jury.”) (quoting Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993)). Accordingly, we affirm Lamore’s convictions and sentences. GRIFFIN and MONACO, JJ., concur. . § 316.193(2)(b)3. Fla. Stat. (2006). . § 322.341, Fla....

...a. Stat. (2000). Section 322.27(5) requires the Department of Highway Safety and Motor Vehicles to revoke the license of any person "designated a habitual offender" as set forth in section 322.264. The second statute under which Webb was charged was section 322.341, Florida Statutes (2000), which reads: Any person whose driver's license or driving privilege has been permanently revoked pursuant to s....

...On the two driver's license crimes and the leaving the scene of an accident charge, the trial court adjudicated Webb to be guilty and sentenced him to concurrent sentences of eighteen months in the Department of Corrections, with credit for 126 days time served. Webb's convictions under sections 322.34(5) and 322.341 did not violate the double jeopardy clause of the Fifth Amendment of the United States Constitution....

...sentence for each criminal offense committed in the course of one criminal episode or transaction." None of the three exceptions to this rule of construction applies in this case. See § 775.021(4)(b)1.-3., Fla. Stat. (2000). Sections 322.34(5) and 322.341 do not require identical elements of proof; the former requires evidence of a habitual traffic offender revocation, while the latter requires proof of a permanent revocation....

...Michael J. Snure and William R. Ponall of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellee. PER CURIAM. The State appeals the lower court's order dismissing the charges of driving while license permanently revoked in violation of section 322.341, Florida Statutes (2006)....

CIKLIN, J. John Velcofski appeals his conviction for driving while license permanently revoked pursuant to section 322.341, Florida Statutes....

PER CURIAM. Appellant was convicted of driving after his license had been permanently revoked, a violation of section 322.341, Florida Statutes (2000)....

PER CURIAM. Upon the state’s concession of error, appellant’s motion to expedite is granted. We reverse appellant’s conviction and sentence for driving while license permanently revoked pursuant to section 322.341, Florida Statutes....

...On the records provided, we cannot determine whether it did so. [2] Dep't of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003). [3] See Gillman v. State, 860 So.2d 1099, 1100 n. 1 (Fla. 1st DCA 2003) (providing that those persons who committed violation of section 322.341, a statute which was created by sections 2 and 13 of chapter 98-223, Laws of Florida, "on or after July 1, 1998, but before the reenactment became effective on May 21, 2003," were entitled to relief under Critchfield)....

...M. We grant appellant’s motion for rehearing. The opinion of December 18, 2002 is withdrawn and we substitute the following opinion: We reverse appellant’s conviction as to Count II, felony driving while license permanently suspended pursuant to section 322.341, Florida Statutés....

...4th DCA 2003) (explaining that "the proper remedy for a person who feels that his or her license was improperly revoked is to have the record corrected `not to ignore the revocation and continue to drive'") (citation omitted). Appellant committed the offense by driving with knowledge that his license had been revoked. § 322.341, Fla....

SALCINES, Judge. The State of Florida appeals the trial court order which granted the motion to dismiss charges filed against Daniel D. Tucker for driving while his license was permanently revoked in violation of section 322.341, Florida Statutes (2001)-....

...At the time the trial court made its ruling, the Fifth District had not issued its en banc ruling which receded from the earlier panel decision in Sylvester. See Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002). In a case directly on point, this court recently held that in a prosecution under section 322.341, “the State may make a *219 sufficient prima facie showing that the defendant’s license was permanently revoked and that he was given notice of the revocation by introducing a certified copy of the defendant’s driving record maintained by the Department of Highway Safety and Motor Vehicles.” State v....

...5th DCA 1999), review denied, 760 So.2d 948 (Fla.2000). We affirm the conviction of felony DWLR on the basis of Sawyer v. State, 819 So.2d 966 (Fla. 4th DCA 2002). However, we withhold the issuance of a mandate, pending the Florida Supreme Court’s ruling upon the issue of the validity of section 322.341, Florida Statutes (2002), as to which issue Sawyer conflicts with Dep’t of Highway Safety and Motor Vehicles v....

...Assistant Attorney General, Tampa, for Appellee. KELLY, Judge. William Spence was convicted of various offenses but on appeal he challenges only his conviction for driving while his license was permanently revoked, in violation of section 322.341, Florida Statutes (2010)....