CATHERINE M. KIRSCHNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Catherine Kirschner appeals a withheld adjudication and probation sentence for driving with a revoked license under Florida's habitual traffic offender statute. The appellate court reversed, finding the State failed to introduce critical evidence—a certified copy of Kirschner's driving record—necessary to prove essential elements of the offense.
The appellate court reversed the withheld adjudication because the State failed to introduce the driving record into evidence and therefore failed to establish two essential elements of the offense: that Kirschner's license was revoked and that the revocation was based on the habitual traffic offender statute. The court remanded with directions to dismiss the charge.
[1] To sustain a conviction for driving with a revoked license under the habitual traffic offender statute, the State must prove the license was revoked under that statute an…
[2] A certified copy of a motorist's driving record maintained by the DMV is permissible evidence to prove revocation under the habitual traffic offender statute.
Previewing 2 of 5 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“To sustain a conviction under section 322.34(5), the State is required to prove that Kirschner's license was suspended or revoked under the habitual traffic offender statute and that she drove a vehicle on the highways of the State of Florida at a time when the Department of Highway Safety and Motor Vehicles had revoked her license and given notice of the revocation.”
Establishes the two essential elements the State must prove under the statute.
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Join FLexlaw to unlock all legal intelligenceKirschner was charged with driving while her driver's license was revoked under the habitual traffic offender statute in violation of section 322.34(5…
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VILLANTI, Judge.
Catherine M. Kirschner appeals an order withholding adjudication and placing her on probation for driving while her driver’s license was revoked under the habitual traffic offender statute1 in violation of section 322.34(5), Florida Statutes (2004). Because the State’s evidence was insufficient to prove that Kirschner’s license was revoked based on the habitual traffic offender statute, we reverse.
To sustain a conviction under section 322.34(5), the State is required to prove that Kirschner’s license was suspended or revoked under the habitual traffic offender statute and that she drove a vehicle on the highways of the State of Florida at a time when the Department of Highway Safety and Motor Vehicles had revoked her license and given notice of the revocation. See State v. Fields, 809 So. 2d 99, 101 (Fla. 2d DCA 2002). The statute permits the State to prove revocation based on the habitual traffic offender statute “by presenting a certified copy of the motorist’s driving record maintained by [the] DMV.” Id.
Here, the State apparently had a copy of Kirschner’s driving record but never introduced it into evidence. During the nonju-ry trial, the court asked the State if it had Kirschner’s driving record. The State said that it did have the record and asked the court to take judicial notice of it. Kir-schner’s public defender objected and there was some discussion as to whether the driving record was hearsay and whether it was a self-authenticating document. The court noted Kirschner’s objection, perhaps overruling it by implication, but never actually took judicial notice of the driving record. Then, without ever having moved the driving record into evidence, the State rested, and Kirschner moved for judgment of acquittal. The court denied the motion and subsequently entered an order withholding adjudication and placing Kirschner on probation. On appeal, Kir-schner’s public defender initially filed an Anders2 brief stating that no meritorious appealable issues were presented by her case. This court ordered supplemental briefing addressing whether the State’s failure to introduce the driving record was fundamental error. In response, the State submitted a brief asserting that it is an “undisputed fact that the State introduced a copy of the appellant’s driving record.” However, the State was unable to comply with this court’s request that it identify where the driving record was located in the record on appeal and where in the transcript of the trial the State introduced the driving record into evidence.
Because the State failed to actually introduce the driving record into evidence, it failed to establish two essential elements of a violation of section 322.34(5) — that Kirschner’s license was revoked and that the revocation was based on the habitual traffic offender statute.3 Accordingly, we reverse the court’s withhold of adjudication and remand this case to the trial court with directions to dismiss the charge.
Reversed and remanded.
CASANUEVA and LaROSE, JJ., concur. . § 322.264, Fla. Stat. (2004).
. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Anders Briefs, 581 So. 2d 149 (Fla.1991).
. We reject the State's suggestion that Kir-schner failed to preserve the issue of sufficiency of the evidence. See F.B. v. State, 852 So. 2d 226, 230-31 (Fla.2003) (noting that "an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.”).
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Awilda Rodriguez v. State, 964 So. 2d 833 (Fla. 2d DCA 2007)…evidence is totally insufficient as a matter of law to establish the commission of a crime, that argument need not be preserved. “Such complete failure of the evidence meets the requirements of fundamental error .... ”); see also Kirschner v. State, 915 So. 2d 624, 625 (Fla. 2d DCA 2005); M.C.M. v. State, 754 So. 2d 844, 845 (Fla. 2d DCA 2000); Hornsby v. State, 680 [*837] So. 2d 598, 598 (Fla. 2d DCA 1996). While Smith, 598 So. 2d at 1066, dictates that a defendant “must have timely objected at trial if an o…
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Card v. State, 927 So. 2d 200 (Fla. 5th DCA 2006)…e State must prove,“(1) that while [the] defendant’s license was revoked as an ‘habitual offender’ (2) he drove a motor vehicle upon the highways of this state.” Arthur. v. State, 818 So. 2d 589, 590 (Fla. 5th DCA 2002); see also Kirschner v. State, 915 So. 2d 624, 625 (Fla. 2d DCA 2005). The State may prove revocation as an habitual traffic offender by presenting a certified copy of the defendant’s driving record maintained by DHSMV. Kirschner, 915 So. 2d at 625. Section 322.201, Florida Statutes (2004), ma…
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Robinson v. State (Fla. 2d DCA 2020)…conviction, the statute requires the State to prove that (1) DMV maintains a record on the motorist, (2) DMV's records show the requisite three separate convictions within a five-year period, and (3) DMV notified the motorist."); Kirschner v. State, 915 So. 2d 624, 625 (Fla. 2d DCA 2005) ("To sustain a conviction under section 322.34(5), the State is required to prove that Kirschner's license was suspended or revoked under the habitual traffic offender statute and that she drove a vehicle on the highways of t…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- F.B. v. State, 852 So. 2d 226 (Fla. 2003)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- State v. Fields, 809 So. 2d 99 (Fla. 2d DCA 2002)