Opinion
Case No. 5D18-2146
07-26-2019
WILLIAM AVERY GEIGER, Appellant, v. STATE OF FLORIDA, Appellee.
James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Brevard County, John M. Griesbaum, Judge. James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee. EDWARDS, J.
Appellant was charged with several driving offenses but has appealed only the trial court's order denying his motion to dismiss Count II, which charged him with felony driving while license or driving privileges permanently revoked in violation of section 322.341, Florida Statutes (2017). He asserts that Count II should have been dismissed on the ground that he has never had a driver's license. Based upon the language of the controlling statute, the reasoning of State v. Miller, 227 So. 3d 562 (Fla. 2017), and our recent case, Hayes v. State, 44 Fla. L. Weekly D1402 (Fla. 5th DCA May 31, 2019), we are compelled to agree and hereby reverse the order denying Count II.
"Individuals . . . who drive in Florida without ever having obtained a license or having an exemption to licensure, do not have any 'driving privilege.'" Miller, 227 So. 3d at 564. "A driver's license or driving privilege that does not exist cannot be canceled, suspended, or revoked." Williams v. State, 244 So. 3d 356, 361 (Fla. 1st DCA 2018). As this court and the First District have said in the past, there is a gaping hole in section 322.341 that the Legislature should close, because a person who is a habitual traffic offender but who has never obtained a valid driver's license can escape felony punishment. Hayes v. State, 44 Fla. L. Weekly at D1402; Williams, 244 So. 3d at 361.
In our case, Appellant denied that he ever had a driver's license and the State offered no proof that he ever had a driver's license or any exemption to licensure. Thus, the trial court erred in denying Appellant's motion to dismiss. We reverse and remand with instructions to vacate Appellant's conviction under section 322.341 and any corresponding sentence
REVERSED AND REMANDED WITH INSTRUCTIONS. COHEN and LAMBERT, JJ., concur.