Opinion
No. 98-2862.
Opinion filed July 21, 1999.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Cynthia G. Angelos, Judge; L.T. Case No. 96-1771 CF.
Richard L. Jorandby, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
Under section 318.14(10), Florida Statutes (1995), persons cited for driving while license suspended (DWLS) under certain circumstances can have the citation resolved administratively through the clerk of the court and have adjudication withheld. In the present case appellant, after his fourth citation for DWLS, was charged with a felony, and contends that he was still entitled to resolve the felony charge administratively through section 318.14(10). We disagree.
Section 318.14, entitled "Non-Criminal Traffic Infractions" characterizes a number of traffic violations, such as not having the certificate of registration, as "non-criminal infractions." § 318.14(1). Section 318.14(10)(a), on which appellant relies, provides:
Any person cited for an offense listed under this subsection may, in lieu of payment of fine or court appearance, elect to enter a plea of nolo contendere and provide proof of compliance to the clerk of the court or authorized operator of a traffic violations bureau. In such case, adjudication shall be withheld; however, no election shall be made under this subsection if such person has made an election under this subsection in the 12 months preceding election hereunder. No person may make more than three elections under this subsection. This subsection applies to the following offenses:
1 . . .[o]perating a motor vehicle with a license which has been suspended for failure to appear, failure to pay a civil penalty . . .
Appellant's license was suspended on November 6, 1995, presumably because he had an outstanding citation for a non-criminal infraction. He was thereafter cited for DWLS on November 30, 1995, February 14, 1996, and June 4, 1996.
Section 322.34(1) provides:
(1) Any person whose driver's license or driving privilege has been canceled, suspended, or revoked, except a "habitual traffic offender" as defined in § 322.264, who drives a vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.
(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. [emphasis added.]
Pursuant to this statute, appellant was charged by information with felony DWLS on June 24, 1996.
In February, 1997, appellant attempted to dispose of the information charging him with felony DWLS by applying to the clerk of the court for an adjudication withheld under the administrative procedure authorized by section 318.14(10)(a). The clerk refused to allow appellant to use the statute to dispose of his felony charge.
Appellant then moved to dismiss the felony charge in the circuit court on the basis that his statutory right provided by section 318.14(10)(a) had been violated. The circuit court denied the motion, but permitted appellant to plead nolo contendere to felony DWLS, reserving the right to bring this appeal and challenge the trial court's ruling on his motion to dismiss the information. He argues that the administrative option authorized in section 318.14(10)(a) includes this felony because it states in subsection 1 that it applies to the following offenses:
1. . . .[o]perating a motor vehicle with a license which has been suspended for failure to appear, failure to pay a civil penalty . . .
Although we agree that the above language, standing alone, would include a felony DWLS, that subsection must be read with the qualifying language we quoted earlier which provides that "any person cited for an offense listed under this subsection" may pursue the administrative resolution with the clerk. Appellant was not a "person cited," but was a person charged by information with a felony. A citation differs from an information in that a citation is issued by a law enforcement officer, section 316.650, Florida Statutes, while an information is filed by the state attorney, section 923.03, Florida Statutes. Appellant is not, accordingly, entitled to have his felony information resolved through the statute, and we affirm his conviction of felony DWLS.
Our holding is limited to cases in which the person charged is seeking to have the clerk accept a plea to a felony information. We leave for another day the issue of whether appellant could have resolved his June 4 citation with the clerk and whether that would have precluded his prosecution on the felony charge because of double jeopardy.
The conviction states that appellant was convicted of "driving under the influence — felony section 322.34." That should be corrected, on remand, to driving while license suspended.
WARNER, C.J., concurs.
TAYLOR, J., dissents with opinion.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
I disagree that section 318.14(10)(a), Florida Statutes, restricts the option to resolve DWLS charges to persons who have only been "cited" for DWLS and not charged by information with DWLS. Such an interpretation would also preclude persons charged by information in county court with misdemeanor DWLS from utilizing the statute. Every person charged by information with DWLS was at one time a "person cited" for DWLS, because a citation is the initial charging document issued by the police officer on the scene of a traffic stop. However, the citation for the DWLS offense is superseded by an information later filed by the state attorney. The statute should not be interpreted in a way that its application is limited to just those persons who were "cited" but not "later charged by information" for the DWLS offense. To so narrowly interpret the statute would defeat the legislature's intent in enacting this statute to grant more lenient treatment to persons whose licenses were suspended solely for failure to pay a fine but later reinstated upon payment of the fines and reinstatement fees. See State v. Keirn, 720 So.2d 1085 (Fla. 4th DCA), rev. granted, 718 So.2d 168 (Fla. 1998).
Furthermore, subsection (11) of this statute, which provides for withholding of adjudication on a DWLS resolved through this procedure, refers to "any person charged or cited under this section." Thus, the statute is, at best, ambiguous as to what a person's status must be at the time of utilizing this administrative option. To the extent that the statutory language is indefinite or"susceptible of differing constructions," the rule of lenity, codified in section 775.021(1), Florida Statutes (1997), compels us to strictly construe the statutory language in appellant's favor. If we apply the rule of lenity in construing section 318.14(10), we will allow persons who were charged or cited with DWLS to elect to receive the benefits of this administrative procedure and avoid a fine, court appearance and conviction for DWLS.
The fact that the appellant herein was charged with felony DWLS is inconsequential. The statute does not specifically restrict the administrative procedure to persons who only qualify for misdemeanor penalties. It expressly includes any person "operating a motor vehicle with a license which has been suspended for failure to appear, failure to pay a civil penalty . . ." In keeping with the rule of lenity and the legislative intent to set such persons apart and treat them more leniently than those whose licenses were suspended as a result of more harmful conduct (e.g., DUI, drug conviction), appellant should be allowed to dispose of his DWLS charge under section 314.18(10). The statute defines eligibility based on the reasons for the suspension (failure to pay a civil fine) rather than on the potential sanction for the offense. The plain language of the statute does not distinguish between persons who qualify for misdemeanor penalties and those who meet the criteria for felony sanctions under section 322.34(2)(c), Florida Statutes. The only restriction upon use of this administrative procedure is the limit of one election per year and three elections over a lifetime.
I would, therefore, reverse appellant's conviction and find that he is entitled to have his DWLS charge resolved administratively through section 318.14(10). Then, if, on remand, appellant chooses that option and receives a withholding of adjudication on the DWLS charge, prosecution on the felony DWLS will be precluded under double jeopardy principles. See also State v. Woodruff, 676 So.2d 975, 978 (Fla. 1996).