CHRISTOPHER JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnson appealed the summary denial of four post-conviction motions challenging three separate convictions for driving with a revoked license under Florida Statutes section 322.34(5). The court affirmed the denials, holding that the prior convictions causing habitual offender status are not elements of the underlying offense and that a constitutional defect in the statute creating section 322.34 did not apply to Johnson's convictions.
The court affirmed the summary denial of all motions, holding that: (1) prior convictions establishing habitual offender status are not an element of section 322.34(5) and therefore cannot be challenged in a motion attacking the conviction; and (2) chapter 98-223 did not create section 322.34 but only amended subsection 322.34(2), and Johnson failed to demonstrate how that amendment affected his convictions.
[1] A motion challenging a conviction for driving with a revoked license under section 322.34(5), Florida Statutes, is not cognizable in a rule 3.800(a) motion if it attacks…
[2] The prior convictions that lead to a habitual offender classification are not an element of the offense of driving with a revoked license under section 322.34(5), Florida…
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“The violation created by section 322.34(5) does not involve-as an element of the crime-a finding that the motorist has been convicted on three separate occasions of DWLS. Instead it involves driving a motor vehicle on the public highways of Florida at a time when DMV has revoked the motorist's license and given notice of the revocation.”
Establishes that prior convictions are not an element of the offense and therefore cannot be challenged in a motion attacking the conviction itself.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was convicted in three separate cases of violating section 322.34(5), Florida Statutes, for driving with a revoked license as a habitual offen…
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We sua sponte consolidate appellant’s three rule 3.850 summary appeals, case nos. 4D10-5362, 4D10-5363, and 4D10-5364, with his related rule 3.800 appeal, case no. 4D10-2149, and affirm the summary denial of all four motions.
With respect to the first appeal, appellant’s rule 3.800(a) motion actually challenged his conviction in lower tribunal case no. 2005CF015334AXX for violating section 322.34(5), Florida Statutes (2005) (driving while license has been revoked pursuant to section 322.264 (habitual offender)), not the legality of his sentence; thus, the ground was not cognizable in a rule 3.800(a) motion.
We also note that he based his challenge on the alleged invalidity of certain prior convictions that presumably had caused his license to be revoked as a habitual offender. However, the convictions that cause a driver to be classified as a habitual offender under section 322.264 are not an element of the offense of violating section 322.34(5):
The violation created by section 322.34(5) does not involve-as an element of the crime-a finding that the motorist has been convicted on three separate occasions of DWLS. Instead it involves driving a motor vehicle on the public highways of Florida at a time when DMV has revoked the motorist’s license and given notice of the revocation. Thus it is not necessary for the state to prove each separate conviction of DWLS which DMV relied on in revoking the license.
Rodgers v. State, 804 So,2d 480, 483 (Fla. 4th DCA 2001) (footnote omitted).
In the three rule 3.850 motions, appellant sought to vacate three convictions, in three separate cases-L.T. case nos. 2002CF014236AXX, *11712003CF000688AXX, and 2003CF000769AXX-for violating section 322.34(5).1 The same ground, identical in each motion, was based on an argument that chapter 98-223, Laws of Florida, which the supreme court held violated the single subject requirement of the Florida Constitution,2 “created” section 322.34, Florida Statutes, and that the three convictions were nonexistent because the offenses in question all were committed during the window period when section 322.34 was unconstitutional.3 However, the session law in question did not create section 322.34, but merely amended subsection 322.34(2) of that statute.4 Ch. 98-223, § 12, at 2108-09, Laws of Fla. The appellant did not demonstrate how that amendment affected him, and we see no way for him to amend to do so.
Affirmed.
STEVENSON, LEVINE and CONNER, JJ., concur.
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- Rodgers v. State, 804 So. 2d 480 (Fla. 4th DCA 2001)
- Fla. Dep't of Hwy. Safety & Motor Vehicles v. Critchfield, 842 So. 2d 782 (Fla. 2003)
- Hubbard v. State, 842 So. 2d 782 (Fla. 2003)
- Moore v. State, 924 So. 2d 840 (Fla. 4th DCA 2006)
- Smith v. State, 860 So. 2d 1099 (Fla. 1st DCA 2003)