BRIAN DAVID FERRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1990-03-16
No. 89-01195
DANAHY and ALTENBERND, JJ., concur.
558 So. 2d 179 Florida District Court of Appeal, Second District (1990) Caution
Cited by 10 cases

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Synopsis

Brian Ferris appealed his conviction and sentence for leaving the scene of an accident with injuries, failure to remain at the scene, and driving with a suspended license. The appellate court reversed in part, finding that the trial court exceeded its authority in suspending his driver's license for four years and imposed a sentence exceeding the statutory maximum for a third-degree felony.


Holding

The court held that the trial court lacked authority to suspend the driver's license, as mandatory revocation is required by statute. The court found the combined sentence of three-and-one-half years imprisonment plus three years consecutive probation exceeded the five-year statutory maximum for a third-degree felony. The court upheld the restitution award, finding Ferris failed to preserve the issue for appeal by consenting to restitution at sentencing.


Headnotes

[1] A trial court lacks the authority to suspend a driver's license; such revocation is mandated by statute upon receipt of a conviction record.

[2] A sentence combining incarceration and consecutive probation may not exceed the statutory maximum term of imprisonment for the underlying felony offense.

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Key Quotes

“the trial court had no authority to suspend appellant's driver's license”

Establishes that courts cannot impose driver's license suspension; revocation is mandatory by statute.

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Facts & Procedural History

On August 13, 1988, Ferris left the scene of an accident resulting in personal injuries without providing information or aid. He also had been driving…

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Opinion of the Court
CAMPBELL, Chief Judge.

CAMPBELL, Chief Judge.

Appellant, Brian David Ferris, appeals his judgment and sentence arising out of his nolo contendere plea to the charges of leaving the scene of an accident resulting in personal injuries, failure to remain at the scene and give information and render aid in violation of sections 316.027 and 316.062, Florida Statutes (1987), and driving while his license was suspended or revoked in violation of section 322.34, Florida Statutes (1987). Those offenses occurred on August 13, 1988. Appellant simultaneously pled guilty to an additional charge of driving while his license was suspended or revoked on April 9, 1988. Appellant was sentenced to time served for the two charges of driving while his license was suspended or revoked and to three-and-one-half years in prison followed by three consecutive years of probation for leaving the scene of an accident. The court ordered appellant’s driver’s license suspended for four years and ordered him to pay $4,782 restitution as a condition of his probation. We reverse in part and affirm in part.

Appellant first challenges that part of his sentence that suspended his driver’s license for four years. Appellant is correct that the trial court had no authority to suspend appellant’s driver’s license. Man dile v. State, 547 So. 2d 1062 (Fla. 2d DCA 1989). However, both sections 316.027(3) and 322.26(4), Florida Statutes (1987) require that the Department of Safety and Motor Vehicles shall forthwith revoke appellant’s license upon receipt of the record of appellant’s conviction from the trial court.

Appellant next correctly contends that his total sentence of three-and-one-half years incarceration plus three years consecutive probation exceeds the maximum term of imprisonment of five years for a third degree felony. § 775.082(3)(d), Fla.Stat. (1987). Leaving the scene of an accident involving personal injuries is a third degree felony. § 316.027(2), Fla.Stat. (1987).

Appellant also argues that the trial court improperly imposed restitution for damages suffered by the victims of the accident. It is true that only damages that are causally related to the crime charged may be imposed by section 775.089(1)(a), Florida Statutes (1987). State v. Williams, 520 So. 2d 276 (Fla.1988). In this case, appellant had entered pleas of nolo conten-dere not only to charges of leaving the scene of an accident and failure to render aid, but also driving while his license was suspended or revoked. Moreover, it is not contested that appellant’s driving of his vehicle resulted in the damages for which restitution was imposed. See Williams; Bowling v. State, 479 So. 2d 146 (Fla. 5th DCA 1985).

Appellant’s original plea negotiations included a negotiated disposition of the charges which specifically included restitution. However, because of an inability to agree as to a term of incarceration, appellant entered his plea without a negotiated disposition, seeking instead an opportunity to persuade the trial judge to be lenient in regard to incarceration. At the final sentencing hearing, the only matter contested was the amount of incarceration time, if any, appellant would receive. At that hearing, appellant’s counsel argued as follows:

I think as Mr. Vigen says, the way in which you score the injuries is going to make an incredible difference to Mr. Ferris. No matter how you score them, you can’t help the victims.

I think that what we need to look at is how we’re going to get the victims their money, their restitution; and how are we going to keep Brian on the straight and narrow, so to speak. And in my mind, the probation report suggests Community Control.

We, therefore, conclude that appellant not only did not object to restitution, he specifically consented to it and, therefore, failed to preserve that issue for appeal. Gemme v. State, 508 So. 2d 533 (Fla. 2d DCA 1987).

We find that appellant’s remaining points on appeal have no merit.

Accordingly, we reverse for resentencing so that appellant’s total sentence shall not exceed the statutory maximum of five years and for deletion of the court-imposed suspension of appellant’s driver’s license. The judgment and sentence is otherwise affirmed.

DANAHY and ALTENBERND, JJ., concur.


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Citator

Cited By

  • Bautista v. State, 600 So. 2d 1255 (Fla. 2d DCA 1992)
    …3. We reverse. As part of a negotiated plea, defendant agreed to pay restitution, reserving his right to a hearing to determine the amount. Because of his agreement, he has waived any objection to the propriety of restitution. See Ferris v. State, 558 So. 2d 179 (Fla. 2d DCA 1990); Pollock v. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984). However, at the restitution hearing defendant effectively objected to the amount of restitution on the basis that he did not have the ability to pay. According to the evidenc…
  • Blake v. State, 814 So. 2d 1163 (Fla. 1st DCA 2002)
    …the filing of the motion is a nullity.”). II. Although the Department of Highway Safety and Motor Vehicles has the authority to revoke Appellant’s driver’s license, the trial court lacks authority to suspend his license. See e.g., Ferris v. State, 558 So. 2d 179, 180 (Fla. 2d DCA 1990)(holding that trial court lacked jurisdiction to suspend defendant’s driver’s license); §§ 316.027(2) and 322.26(4), Fla. Stat. (2000). Accordingly, we reverse the trial court’s suspension of Appellant’s driver’s license. III…
  • Salvador v. State, 601 So. 2d 227 (Fla. 2d DCA 1992)
    …where the defendant’s punished offense was for a specific traffic infraction or offense. See generally § 316.655, Fla. Stat. (1989). Reversed and remanded. CAMPBELL, A.C.J., and LEHAN, J., concur. . We distinguish this case from Ferris v. State, 558 So. 2d 179 (Fla. 2d DCA 1990). While it is questionable whether restitution was mandated by statute in that case, the defendant specifically consented to the restitution and did not preserve any possible error for review.…

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