Overzealous DWLS Prosecution Gets Struck Down
By now, you should know that these articles are not written for those of you who want to feel intellectually superior to your fellow man — there are plenty of other outlets for such nonsense. The world is full of well-educated folks chilling at swanky gastropubs, comparing notes on recent New Yorker articles, and congratulating each other on their graduate degrees from some overrated university. My articles don’t have the self-congratulatory ivy league jargon necessary to make certain folks feel better about themselves. As such, I always spare you as much legal jargon as possible, so that the focus remains on what is happening at the ground level of Florida’s criminal justice system. On to the topic of the day…..
Driving while license suspended license charges (DWLS). Not a big deal to people who have a view of life from the back of a limousine, but a valid license is extremely important to the rest of us (why the rant on elitists today? I don’t know, but I’ll stop now).
Unfortunately, DWLS charges seem to be more popular than ever. Our government has made it more difficult to obtain a license these days, yet its still easy to enter the country. When George W. was governor of Texas, numerous Mexican clients would get a Texas driver’s license (no proof of citizenship required by W, at the time), and have that license transferred to Florida. That worked, for a while. But, it is now more difficult for immigrants to obtain a license. Recently, I had a Russian client who married an American citizen, and it took her several years to jump through the proper hoops to obtain a valid license (eventually she got it, but had to go to the Russian Consulate in Virginia to get the process going…long story).
To understand the Florida Supreme Court case we’re going to discuss today, it is first necessary to understand the different varieties of driving while license suspended charges. The DWLS charge will vary depending upon either the driving history, or injuries, caused by the illegal driving. For driving history cases, if the driver has no knowledge that his license was suspended, the officer should issue a simple traffic citation for driving while license suspended without knowledge. This isn’t a crime, it’s a ticket. (naturally, an attorney should be hired on such cases, for reasons we don’t have time to discuss here)
The next level up involves a driver who, in fact, knows that his license is suspended. Under such circumstances, driving is a criminal act, a misdemeanor of the second degree (DWLS with knowledge). And, if the driver decides to drive again, after being caught and convicted of a previous offense, the charge is upgraded to a first degree misdemeanor (DWLS with One Prior). Now, if you rack up three DWLS charges within a five year period, the DMV will suspend your license for five (5) years as a Habitual Traffic Offender (should you find yourself in that unfortunate position, click here for information on how an HTO suspension may be overturned). If, after obtaining HTO status, you continue to drive, it becomes a third degree felony DWLS as an HTO.
For anyone with criminal defense experience, it should come as no surprise that some prosecutors seek to waste taxpayer dollars at a faster rate than others. How, you ask? By overcharging criminal acts. And, that’s just what happened in the case of Gil v. State, 118 So. 3d 787 (Fla. 2013), Gil was stopped for speeding, and arrested for both driving on a suspended license (DWLS), and driving on a suspended as a habitual traffic offender. (I’m tempted to insert a rant here about why people with HTO suspensions like to speed more than fully legit drivers, but I’ll spare you, because this article is already getting longer than I expected)
Gil did one thing right, sort of, in that he pled to the misdemeanor DWLS immediately, before the prosecutor could file felony charges (prosecutor should have dropped the misdemeanor and upgraded to felony immediately, if the left hand knew what the right hand was doing–but we’re dealing with the government, after all, so what do you expect?). After the plea, the state attorney filed a felony charge of DWLS as an HTO. Gil filed a motion to dismiss the felony charges based upon a violation of double jeopardy (a concept found in our Constitution, and Section 775.021(4) of the Florida Statutes). The trial court granted Gil’s motion to dismiss, but in an effort to waste even more taxpayer funds, the state appealed this dismissal. The money wasting continued, as the Third District Court of Appeals actually overturned the dismissal, finding that the felony HTO “is based on entirely different conduct and on a completely different criteria than [the misdemeanor DWLS]”. Id., at 790.
Now, the state’s appeal in Gil created a problem for other appeals courts, as decisions out of the First, Fourth, and Fifth District Courts of Appeal have held that a citizen cannot be convicted of misdemeanor DWLS and felony DWLS as an HTO. That’s why Gil’s case ended up before the Florida Supreme Court, one of the jobs of the Florida Supreme Court is to sort out the inconsistent opinions of the various Florida courts of appeal.
Getting back to basics, the Fifth Amendment to the Constitution states that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” Florida’s Constitution says about the same thing, and Florida has also created a statute, 775.021(4), which lays out the ground rules. If you want to know whether or not Gil can be convicted of both misdemeanor DWLS and felony DWLS as an HTO, the statute first asks whether or not the two statutes require different proofs. If they require different proof, then a citizen may be convicted of both. In this case, the misdemeanor DWLS requires Gil to know his license is suspended, but felony DWLS as an HTO does not require such knowledge, it only requires the driver to be branded a habitual traffic offender. Under this part of the statute, Gil can be convicted of both. But, the analysis doesn’t stop there.
Florida Statute 775.021(4) does not permit dual convictions if the two offenses are simply “degrees of the same offense”. Id. at 793. This is known as the ‘degree variant exception’. The Third District Court of Appeals overturned Gil’s initial dismissal because that court felt that, technically, these charges are not “degrees of the same offense” and as such, the prosecution is entitled to separate convictions. But Florida’s Supreme Court disagreed, opting for a “plain meaning” of the term “degree”. So, the fact that the misdemeanor DWLS statute and the felony HTO statute do not explicitly refer to one another as degrees of the same offense, “it is not necessary for the Legislature to use the word ‘degree’ when it defines a crime for the degree variant exception to apply.” Id. at 794.
You may ask yourself, why enlist the Florida Supreme Court to decide whether or not misdemeanor DWLS and felony driving as a habitual traffic offender are, essentially, degrees of the same offense? Isn’t this obvious? The Supreme Court in Gil reasoned that, first off, both misdemeanor DWLS and felony HTO are “located in the same statute”, Florida Statute 322.34. Second, the court found that misdemeanor DWLS is a predicate offense which qualifies a driver as a habitual traffic offender. The Supreme Court took issue with the Third District Court of Appeals decision that permitted Gil to be convicted of both based upon the flawed reasoning that a “suspension or revocation under [the misdemeanor DWLS statute in 322.34(2)] is based on entirely different conduct and on a completely different criteria than a revocation under [322.34(5), the felony HTO statute]”. Id.at 796.
The Supreme Court overturned Gil’s conviction for felony DWLS as an HTO, finding that the two crimes are simply variant degrees of the same offense. Shocking, I know. I feel bad for the kids that have to use old school books because the criminal justice system is spending way too much money on stupid stuff. That being said, I don’t think most people are aware that their elected officials (State Attorney’s, specifically) are wasting taxpayer dollars charging people like Gil with felony driving charges after he has already been placed on months of probation for the very same driving incident. No, this sort of wasteful spending doesn’t make the news, but I’ll keep reminding you its out there.