Opinion
Case No. 4D00-383.
Opinion filed February 14, 2001.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanley Goldstein, Judge; L.T. Case No. 98-24470 CF10A.
Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Meredith L. Balo, Assistant Attorney General, Fort Lauderdale, for appellee.
The appellant, Bryce Levine, appeals from his convictions, pursuant to a no contest plea, for felony driving while license suspended (DWLS) (habitual offender) and resisting arrest without violence. Appellant contends that the trial court erred in (1) denying his motion to dismiss where one of the predicate prior convictions upon which the trial court relied in declaring him a habitual offender was uncounseled, and (2) in determining that the DWLS statute is not unconstitutionally vague. We agree with the trial court and affirm.
As to appellant's first point on appeal, the argument is not preserved because it was not dispositive of the case below. An issue is preserved for appeal on a guilty plea only if it is dispositive of the case. See Zambuto v. State, 731 So.2d 46 (Fla. 4th DCA 1999); see also Weber v. State, 492 So.2d 1166, 1167 (Fla. 4th DCA 1986); Fla.R.App.P. 9.140(b)(2)(A). "An issue is legally dispositive `only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case.'" Zambuto, 731 So.2d at 46 (quoting Vaughn v. State, 711 So.2d 64, 65 (Fla. 1st DCA 1998)).
In this case, the issue was not dispositive because, as the trial court observed, appellant had several withholds upon which his habitualization could have been based even if the challenged predicate offense was uncounseled. This court in State v. Keirn, 720 So.2d 1085, 1090 (Fla. 4th DCA 1998), held that a withheld adjudication could be considered a "conviction" under section 322.34, Florida Statutes (1995). See also Raulerson v. State, 763 So.2d 285 (Fla. 2000) (agreeing with this court's interpretation of the term "conviction" as it is used in the DWLS statute). Therefore, because the state could have relied on appellant's withheld adjudications as a basis for habitualization, the issue of whether the subject predicate offense was uncounseled was not dispositive of the case and is not preserved on appeal.
We also agree with the trial court that section 322.34(5), Florida Statutes (1998), is not unconstitutionally vague. Appellant contends that the vagueness is caused by the language in section 322.34(5) that classifies as a felon "[a]ny person whose driver's license has beenrevoked pursuant to s. 322.264 (habitual offender). . . ." (Emphasis added). However, section 322.264 does not confer any authority to actually "revoke" a license, it merely defines a "habitual traffic offender." Therefore, according to appellant, the two statutes do not give adequate warning of proscribed conduct.
"[W]here reasonably possible, a statute will be interpreted in a manner that resolves all doubts in favor of its constitutionality. It is also well recognized that to withstand a vagueness challenge, a statute must give persons of ordinary intelligence adequate notice of the proscribed conduct." State v. Fuchs, 769 So.2d 1006, 1008 (Fla. 2000) (citations omitted). See also Jean v. State, 764 So.2d 605, 608 (Fla. 4th DCA 1999) ("`objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.'") (quoting Maynard v. Cartwright, 486 U.S. 356, 361 (1988)) (emphasis in original). "If the record demonstrates that the [defendant] engaged in some conduct clearly proscribed by the plain and ordinary meaning of the statute, then he cannot successfully challenge it for vagueness nor complain of its vagueness as applied to the hypothetical conduct of others." State v. Barnes, 686 So.2d 633, 637 (Fla. 2d DCA 1996). See also Sieniarecki v. State, 756 So.2d 68, 74-75 (Fla. 2000).
Section 322.34(5) provides as follows: "[a]ny person whose driver's license has been 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, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." Section 322.264 defines a "habitual traffic offender" and lists the ways in which a person can receive such status. One such way is if the defendant receives three or more convictions of "[d]riving a motor vehicle while his or her license is suspended or revoked." § 322.264(1)(d), Fla. Stat. (1997). This section does not by itself provide any form of punishment for a defendant who is classified as a habitual traffic offender, it merely defines the term "habitual traffic offender."
The subject habitual traffic offender provisions are not unconstitutionally vague. As the trial court stated, "just by saying habitual offender I think it's putting everybody on notice that that's the reason for the revocation, not 322.264, but habitual offender." Thus, even though section 322.264 merely defines a habitual traffic offender and does not provide for the revoking of a defendant's driver's license, section 322.34(5) is clear that once a defendant is considered a habitual traffic offender, and drives with a revoked license, he commits the conduct proscribed under section 322.34 and is guilty of a third degree felony.
Affirmed.
WARNER, C.J., FARMER and TAYLOR, JJ., concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.