STATE OF FLORIDA, APPELLANT,
v.
ERNEST E. TUCKER, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The State appealed the trial court's dismissal of a DWLSR (driving with license suspended/revoked) felony charge against Tucker. The court held that the trial court erred in relying on outdated case law, as the statutory definition of "drive" now includes actual physical control of a motor vehicle, but remanded because a factual issue remained regarding whether a private parking lot constitutes a "highway" under Florida law.
The court reversed, holding that the statutory definition of "drive" in section 322.01(15) now includes actual physical control of a motor vehicle, overruling the outdated precedent in Marshall v. State. However, because a material factual issue remains as to whether the parking lot was open to public use for vehicular traffic, the court could not affirm dismissal and remanded for further proceedings.
[1] The definition of "drive" in section 322.01(15), Florida Statutes, which includes being in actual physical control of a motor vehicle, applies to the offense of driving w…
[2] A "street or highway" under Florida law includes any place open to public use for vehicular traffic, even if privately owned.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“section 322.01(15), Florida Statutes (1999) now includes the following definition for the term "drive": "[a]s used in this chapter ... '[d]rive' means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic."”
Establishes the current statutory definition of "drive" that now includes actual physical control, overruling the Marshall precedent.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceErnest E. Tucker was charged with driving while license suspended or revoked as a habitual traffic offender under Florida Statutes section 322.34(5). …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Habitual Traffic Offender cases and more on FLexlaw
THREADGILL, Acting Chief Judge.
The appellee was charged with driving while license suspended or revoked (DWLSR) as a habitual traffic offender, a third-degree felony, under section 322.34(5), Florida Statutes (1999). He filed a sworn motion to dismiss the information, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), alleging two grounds for dismissal: that he was legally parked in a private parking lot when he was observed by law enforcement officers, and that actual physical control of a motor vehicle does not support a conviction for DWLSR. After a hearing on the motion, the trial court dismissed the information. The State appeals. We reverse and remand for further proceedings.
The trial court based its ruling on this court’s decision in Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978), which held that, under the statutes in effect in 1975, actual physical control of a motor vehicle was not enough to convict for driving without a license. The statutes regulating driver’s licenses have been amended since Marshall. See Ch. 89-282, § 3, at 1665, Laws of Fla. As noted by the Fifth District in State v. Bostick, 751 So. 2d 780 (Fla. 5th DCA 2000), which was issued after the trial court’s ruling in this case, section 322.01(15), Florida Statutes (1999) now includes the following definition for the term “drive”: “[a]s used in this chapter ... ‘[d]rive’ means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.” According to the plain language of this provision, the definition of “drive” in section 322.01(15) applies to section 322.34.
The appellee concedes on appeal that actual physical control now applies to DWLSR. He argues, however, that even if actual physical control applies to DWLSR, he was in a private parking lot and not driving upon the highways of this state, which is an element of the offense under section 322.34(5). Section 322.34(5) provides that any person whose driver’s license has been revoked as a 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. “Street or highway” is defined in section 322.01(38) as “the entire width between the boundary lines of a way or place if any part of that way or place is open to public use for purposes of vehicular traffic.” This definition has been held to include parking lots that are open to public use by vehicles, even though such parking lots may be privately owned. See State v. Lopez, 633 So. 2d 1150 (Fla. 5th DCA 1994).
In this case, the appellee’s sworn motion to dismiss states that he was in a car parked in a private dirt/gravel parking lot. There remains a material factual issue as to whether the parking lot was a place open to public use for purposes of vehicular traffic. This factual issue precludes the dismissal of the information. See Baltrus v. State, 571 So. 2d 75 (Fla. 4th DCA 1990); Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988). We therefore reverse and remand for further proceedings.
Reversed and remanded.
STRINGER, J., and SCHEB, JOHN M., (Senior) Judge, Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Galston v. State, 943 So. 2d 968 (Fla. 5th DCA 2006)…e of lenity. Accordingly, the trial court should have granted Galston’s motion for judgment of acquittal. The evidence at trial was undisputed that the area in which Galston was driving was closed to the public.2 The State cites to State v. Tucker, 761 So. 2d 1248 (Fla. 2d DCA 2000), for the proposition that the question of whether a highway is open to public use by vehicles is one of fact to be resolved by the jury. In Tucker, the appellate court reversed the dismissal of a felony driving while license suspe…
-
Mattingly v. State, 41 So. 3d 1020 (Fla. 5th DCA 2010)…hicles even though the areas are not owned or maintained by a governmental agency. State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994). Whether a street is considered to be open to public use is usually a question of fact. See State v. Tucker, 761 So. 2d 1248 (Fla. 2d DCA 2000). Here, the record supports the trial court’s conclusion that the roads at issue were open to public use. AFFIRMED. ORFINGER and TORPY, JJ., concur.…
-
Melvin v. State, 141 So. 3d 592 (Fla. 4th DCA 2014)…effectively in allowing appellant to plead no contest to a charge not supported by an adequate factual basis. See Harris v. State, 32 So. 3d 197 (Fla. 4th DCA 2010); Silverstein v. State, 985 So. 2d 635 (Fla. 4th DCA 2008); see also State v. Tucker, 761 So. 2d 1248, 1249 (Fla. 2d DCA 2000) (in DWLSR prosecution under section 322.34, actual physical control is an element of the offense); State v. Bostick, 751 So. 2d 780, 780 (Fla. 5th DCA 2000) (same). [*593] Affirmed in part, reversed in part, and remanded wit…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988)
- Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978)
- Baltrus v. State, 571 So. 2d 75 (Fla. 4th DCA 1990)
- State v. Lopez, 633 So. 2d 1150 (Fla. 5th DCA 1994)
- State v. Carmel Lashone Bostick, 751 So. 2d 780 (Fla. 5th DCA 2000)