NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STEVEN WOODBURY, )
)
Appellant, )
)
v. ) Case No. 2D19-2930
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed September 4, 2020.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Charlotte County; George C. Richards,
Judge.
SLEET, Judge.
Steven Woodbury challenges the summary denial of his Florida Rule of
Criminal Procedure 3.850 motion for postconviction relief. We reverse and remand for
further proceedings.
On November 8, 2017, Mr. Woodbury pleaded guilty to one count each of
driving while license canceled, suspended, or revoked (DWLS) pursuant to section
322.34(2)(c), Florida Statutes (2017), and leaving the scene of an accident with property
damage pursuant to section 316.061(1), Florida Statutes (2017). The court sentenced
Mr. Woodbury to seven months' imprisonment in the county jail on the DWLS count. He
did not file a direct appeal.
In his postconviction motion, Mr. Woodbury raised one claim of ineffective
assistance of counsel. To allege a facially sufficient claim for ineffective assistance of
counsel, a defendant must plead sufficient facts to establish that his trial counsel's
performance was deficient and that he was prejudiced thereby. Martin v. State, 205 So.
3d 811, 812 (Fla. 2d DCA 2016) (citing Strickland v. Washington, 466 U.S. 668, 694
(1984)). To establish the deficiency prong, the defendant must show that counsel's
"errors [were] so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." Hodges v. State, 885 So. 2d 338, 345 (Fla.
2004) (quoting Strickland, 466 U.S. at 687). "In the plea context, a defendant satisfies
the prejudice requirement only where he can demonstrate 'a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial.' " Hernandez v. State, 124 So. 3d 757, 762 (Fla. 2012) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)).
"We review the postconviction court's summary denial of a rule 3.850
motion de novo." Duncan v. State, 232 So. 3d 450, 452 (Fla. 2d DCA 2017).
To uphold the trial court's summary denial of claims raised in
a 3.850 motion, the claims must be either facially invalid or
conclusively refuted by the record. Further, where no
evidentiary hearing is held below, we must accept the
defendant's factual allegations to the extent they are not
refuted by the record.
McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (quoting Foster v. State, 810 So. 2d
910, 914 (Fla. 2002)).
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Mr. Woodbury claimed that his counsel was ineffective for misadvising him
to enter a plea to the DWLS charge because he had never possessed a valid driver
license and therefore his two prior predicate DWLS offenses and the instant charge did
not qualify him to be convicted under section 322.34(2)(c). He claimed that had he
been properly advised, he would not have entered a plea and would have insisted on
going to trial. The applicable subsection of section 322.34(2)(c), which was in effect at
the time of Mr. Woodbury's offense and plea, provided in pertinent part:
(2) Any person whose driver license or driving privilege has
been canceled, suspended, or revoked as provided by law . . .
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 or subsequent conviction is guilty of a felony of the
third degree . . . .
Mr. Woodbury cites State v. Miller, 227 So. 3d 562 (Fla. 2017), which was issued on
September 28, 2017—after his offense but before he entered his plea—to support his
position. In Miller, the Florida Supreme Court held that
[t]he plain language of section 322.34(5), Florida Statutes,
provides that an offender must have had his or her driver
license revoked as a habitual traffic offender in order for the
felony penalty to apply. The State cannot revoke a license
that never existed. Consequently, a person cannot violate
section 322.34(5) without ever having obtained a driver
license.
Id. at 564. Section 322.34(5), the habitual traffic offender subsection of 322.34, omits
the "driving privilege" language of section 322.34(2)(c) and only includes language that
the offender must have had his or her driver license revoked. § 322.34(5) ("Any person
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whose driver license has been revoked pursuant to s. 322.264 (habitual offender) . . .
[commits a crime].").
The postconviction court summarily denied Mr. Woodbury's claim because
he was convicted under subsection (2)(c) and not subsection (5). It found that Miller
therefore did not apply to Mr. Woodbury. But the basis for the supreme court's holding
concerning subsection (5) is the fact of never having obtained a driver license. That fact
applies equally to subsection (2)(c). The postconviction court ignored the Miller court's
discussion of "driving privilege," which language is included in subsection (2)(c). The
supreme court stated in dicta that "[i]ndividuals . . . who drive in Florida without ever
having obtained a license or having an exemption to licensure, do not have any 'driving
privilege' " and "are guilty of a second-degree misdemeanor for violation of section
322.03, Florida Statutes." Miller, 227 So. 3d at 564-65. It appears that Mr. Woodbury
may fall into this category of individuals.1
The postconviction court did not attach any records that refute Mr.
Woodbury's claim that he has never had a driver license. Accordingly, we reverse and
remand for the postconviction court to either attach portions of the record that refute Mr.
Woodbury's claim or hold an evidentiary hearing.
Reversed and remanded.
LaROSE and BLACK, JJ., Concur.
1We note that after Miller, the Florida Legislature amended section
322.34(2)(c) to include language regarding people who have never had a driver license
or a driving privilege. See § 322.34(2), Florida Statutes (2019) ("Any person whose
driver license or driving privilege has been canceled, suspended, or revoked as
provided by law, or who does not have a driver license or driving privilege but is under
suspension or revocation equivalent status as defined in s. 322.01(41) [commits a
crime.]" (emphasis added)).
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