DAVID A. MCCORMICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McCormick appeals the denial of his motion to suppress evidence from a police encounter and challenges his conviction for driving with a permanently revoked license. The appellate court affirmed the denial of the suppression motion but vacated the conviction for permanent license revocation based on a recent ruling that the underlying statute was unconstitutional, while affirming his other convictions.
The court affirmed the denial of the motion to suppress because the encounter between police and McCormick was consensual and supported by competent, substantial evidence. However, the court vacated McCormick's conviction for driving with a permanently revoked license because the underlying statute (section 322.341) was held unconstitutional in Department of Highway Safety & Motor Vehicles v. Critchfield. The court affirmed all other convictions and sentences.
[1] A police stop is consensual when the individual is free to leave at any time.
[2] A conviction under a statute later declared unconstitutional must be vacated.
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“Because we find competent, substantial evidence to support the trial judge's conclusion that the encounter between the police and McCormick was .consensual, we affirm the denial of the motion to suppress without further discussion.”
Establishes the court's holding on the suppression motion, finding the police encounter was consensual and lawful.
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Join FLexlaw to unlock all legal intelligenceMcCormick was stopped by police and charged with multiple offenses including driving after his license had been permanently revoked, driving while lic…
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David A. McCormick appeals the denial of his motion to suppress. He also contends that his conviction of driving after his license had been permanently revoked was erroneous. McCormick was charged with driving after his license was permanently revoked,1 driving while license revoked as an habitual offender,2 resisting an officer without violence,3 and possession of less than twenty grams of cannabis.4 McCormick filed a motion to suppress, contending that the police had stopped him without any lawful reason, and that his subsequent arrest and the search of his person and vehicle were therefore illegal. Because we find competent, substantial evidence to support the trial judge’s conclusion that the encounter between the police and McCormick was .consensual, we affirm the denial of the motion to suppress without further discussion.
We do find merit in McCormick’s contention that his conviction for driving after his license had been permanently revoked pursuant to section 322.341, Florida Statutes (2001), is erroneous based on our opinion in Department of Highway Safety & Motor Vehicles v. Critchfield, 805 So. 2d 1034 (Fla. 5th DCA), review granted, No. 02-386 (Fla. Apr. 24, 2002). In Critchfield, decided after the trial judge’s ruling, we held chapter 98-223, which enacted section 322.341, to be unconstitutional. Our view is not unanimous. The Fourth District Court of Appeal recently reached the contrary result, and found this statute to be constitutional. See Sawyer v. State, 819 So. 2d 966 (Fla. 4th DCA 2002). Based on Critchfield, we vacate McCormick’s conviction for driving after his license was permanently revoked and certify conflict with Sawyer. In all other respects, we affirm McCormick’s convictions and sentences.
AFFIRMED IN PART, VACATED IN PART AND CONFLICT CERTIFIED.
SHARP, W. and HARRIS, JJ., concur. . § 322.341, Fla. Stat. (2001).
. § 322.34(5), Fla. Stat. (2001).
. § 843.02, Fla. Stat. (2001).
. § 893.13(6)(b), Fla. Stat. (2001).
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Citator
Cited By
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State v. McCORMICK, 868 So. 2d 512 (Fla. 2004)…), Fla. Const. For the reasons expressed in our opinion in Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So. 2d 782 (Fla.2003), we summarily affirm the decision of the Fifth District Court of Appeal in McCormick v. State, 826 So. 2d 476 (Fla. 5th DCA 2002). It is so ordered. ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.…
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Sorrell v. State, 855 So. 2d 1253 (Fla. 4th DCA 2003)…e that chapter 98-223 violates the single subject rule.” Critchfield, 842 So. 2d at 786. Because chapter 98-223, the statute creating section 322.341, is unconstitutional, appellant cannot be convicted of that [*1256] crime. See McCormick v. State, 826 So. 2d 476, 477 (Fla. 5th DCA 2002). The next question is what happens to this case once section 322.341 is declared unconstitutional, rendering that count of the information a non-existent crime. At the non-jury trial, the state did not request the trial jud…
Authorities Cited
- Blocker v. Unemployment Appeals Comm'n & Barton Protective Servs., 805 So. 2d 1034 (Fla. 2d DCA 2001)
- Sawyer v. State, 819 So. 2d 966 (Fla. 4th DCA 2002)