Suspended License

The issue of whether you can be charged with both misdemeanor driving while license suspended in violation of section 322.34(2) and felony driving while license suspended in violation of section 322.34(5).  This issue was addressed in Pedro Gil v. State of Florida, No. SC11-1983 (July 11, 2013).
 
On October 6, 2009, Pedro Gil was stopped in Miami-Dade County for speeding. Gil informed the officer that his driver’s license was suspended, and Gil was then arrested. For purposes of this case, the arrest report listed the following charges: driving with a suspended license (DWLS), in violation of section 322.34. 
On October 27, 2009, Gil pled nolo contendere to the misdemeanor DWLS charge in a county court and was adjudged guilty of this charge. Gil was sentenced to six months’ probation and two hundred hours of community service, plus the payment of $358. On the same day, the State Attorney for the Eleventh Judicial Circuit filed an information that charged Gil with a violation of the felony HTO statute. Gil subsequently filed a motion to dismiss the information on the basis that it violated Florida’s double jeopardy statute.  The circuit court granted Gil’s motion to dismiss the felony information. On appeal, the Third District reversed the dismissal of the information. Gil, 68 So. 3d at 1003. While acknowledging that the HTO provision, codified in section 322.34(5), appears to be a degree variant of the DWLS provision, codified in section 322.34(2), the Third District nonetheless stated: Subsection (5) is not a degree variant of subsection (2) because: subsection (2) punishes for driving with a canceled or revoked license, whereas subsection (5) only punishes for driving with a revoked license.  The Third District ultimately held that “because suspension or revocation under subsection (2) of section 322.34 is based on entirely different conduct and on a completely different criteria than a revocation under subsection (5), subsection (5) cannot be a degree variant of subsection (2), and therefore convictions for violating subsection (2) and subsection (5) do not constitute double jeopardy. 
However, double jeopardy may still attach if subsections 322.34(2) and 322.34(5) satisfy one of the exceptions provided under subsection 775.021(4)(b). As previously discussed, the DWLS and HTO provisions do not require identical elements of proof. Further, driving with a suspended license is not a lesser included offense of unlawful driving as a habitual traffic offender. Instead, the dispositive issue is whether the DWLS offense and the HTO offense are “degrees of the same offense” under subsection (4)(b)(2).  Applying the test articulated in Valdes, the Florida Supreme Court concluded that sections 322.34(2) and 322.34(5) qualify as variant offenses under section 775.021(4)(b)(2) and double jeopardy precludes the prosecution of Gil under the HTO provision in light of his prior conviction under the DWLS provision based on the same facts.  www.zlawfirmfl.com
 
 
 
 
Location: 501 North Magnolia Avenue, Orlando, FL 32801, USA

Comments

Post a Comment

Popular posts from this blog

What is a Felony Offense

  Felony Offenses in Florida In the State of Florida, criminal violations are classified as either a misdemeanor or felony offense.  A misdemeanor offense is one that is punishable by up to one year in the County Jail.  Felony offenses, which are more serious than misdemeanor offenses, carry significantly harsher penalties.  Florida Statute §775.082 defines the classifications of felony offenses in the State of Florida.  A felony offense can be classified as a capital offense, a life felony, a first-degree felony, a second-degree felony, and a third-degree felony. A  capital felony offense  is one that is punishable by death or life imprisonment without the possibility of parole.  Most often, people recognize first-degree murder as a capital offense.  However, in certain instances,  sexual battery  can be classified as a capital felony offense even though it is not punishable by death. The next level of felony offense is a  lif...
Read more

What Should I Do After I Have Been Arrested

What Should I Do After I Have Been Arrested All too often, when I meet with clients, one of the first questions I am asked is, “what should I have done after I was arrested?”  The simplest response is, keep your mouth shut.  The 5th Amendment to the United States Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information about themselves.  This is the so-called “Right to Remain Silent.”  So, if you are placed under arrest, remember that you have the right to remain silent .  You also have the right to speak with an attorney .  Finally, you have the right to refuse consent to a search of your person or belongings assuming the officer does not have a warrant.  Keep in mind that the officer does have the right to pat you down if there is concern that you may possess a weapon.  Should the officer ignore your refusal to give consent, this will provide a ground for a suppression motion at ...
Read more

How Do I Find the Right Seminole County Criminal Defense Attorney

An arrest is not something that anyone ever plans for.  But when it happens, decisions must be made quickly.  Your first order of business is contacting a bondsman to get yourself out of jail.  Once this accomplished, your next order of business is finding a Seminole County Criminal Defense Lawyer to defend you.  Finding the best lawyer can make the difference in the outcome of your case.   First, find a lawyer that you can trust and communicate with.  Too often, I end up handling cases where clients come to me after finding that the lawyer they initially hired never returned their calls.  Communication is important.  Next, find a lawyer who focuses their practice on criminal defense.  Law Firms that tell you that they can help you with your criminal case, personal injury case, and family law case will not be a good fit.  When your liberties are at stake, you do not want a lawyer who primarily...
Read more