ANTHONY M. FRANKLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Franklin was convicted of two mutually exclusive driving offenses arising from a single incident—driving with a revoked license as a habitual offender under section 322.34(5) and driving with a suspended/revoked license under section 322.34(2). The court reversed the latter conviction because section 322.34(2) expressly excludes habitual offenders, making the two convictions legally incompatible.
Franklin's conviction under section 322.34(5) for driving with a revoked license as a habitual offender is affirmed as supported by competent substantial evidence. However, his conviction under section 322.34(2) is reversed because that statute expressly excludes persons whose licenses have been revoked as habitual offenders. The case is remanded for resentencing to exclude the reversed conviction from the sentencing scoresheet.
[1] A person whose driver's license has been revoked as a habitual offender pursuant to section 322.264 cannot be convicted of driving while their license is suspended, cance…
[2] Convictions for driving after license revocation as a habitual offender and driving while license is suspended, canceled, or revoked are mutually exclusive offenses.
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“By their express terms, these offenses are mutually exclusive, and accordingly we reverse Franklin's conviction of driving while his license was suspended, canceled, or revoked in violation of section 322.34(2)(c).”
States the core holding that the two convictions cannot coexist due to statutory language making them mutually exclusive.
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Join FLexlaw to unlock all legal intelligenceFranklin's driver's license had been previously revoked pursuant to section 322.264 as a habitual offender. He was convicted of both driving with a re…
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POLEN, C.J.
Arising out of a singular offense, Anthony Franklin was convicted of the dual offenses of (1) driving after his license had been revoked pursuant to Florida Statutes section 322.264 [habitual offender], in violation of section 322.34(5), and (2) driving while his license was suspended, canceled, or revoked, in violation of section 822.34(2), felony level. By their express terms, these offenses are mutually exclusive, and accordingly we reverse Franklin’s conviction of driving while his license was suspended, canceled, or revoked in violation of section 322.34(2)(c).
In pertinent part, section 322.34 provides:
Any 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. § 322.34(5), Fla. Stat. (2000)(emphasis added).
Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(C) A third subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 322.34(2)(c), Fla. Stat. (2000).
(Emphasis added.)
Here, the trial court found Franklin’s privilege to drive had previously been revoked pursuant to s. 322.264 as an habitual offender. Accordingly, by definition, Franklin cannot be convicted of a violation of s. 322.34(2), which expressly does not apply to persons whose licenses have been revoked pursuant to s. 322.264, ie., habitual offenders.
Franklin’s conviction for driving with a revoked license in violation of s. 322.34(5) is supported by competent substantial evidence, and is thus affirmed. However both convictions were used in computing Franklin’s sentencing scoresheet; since we are reversing one of the underlying convictions used in its computation, the case is remanded on the remaining convictions for resentencing.1
STEVENSON and TAYLOR, JJ., concur. . In addition to the conviction for driving with a revoked license, habitual, which is affirmed, Franklin was also convicted of cocaine possession and resisting arrest without violence. These additional counts have not been challenged on appeal and shall be used to recalculate Franklin’s sentence consistent with the foregoing opinion.