DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
BRYANT MOSS,
Appellee.
No. 4D21-347
[September 15, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Robert F. Diaz, Judge; L.T. Case Nos. 20-000094MM10A
and 20-000027AC10A.
Michael J. Satz, State Attorney, and Joanne Lewis, Assistant State
Attorney, Fort Lauderdale, and Ashley Moody, Attorney General,
Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm
Beach, for appellant.
Gordon Weekes, Public Defender, and Sarah Sandler, Assistant Public
Defender, Fort Lauderdale, for appellee.
WARNER, J.
The State appeals a final order imposing a sentence on defendant for
driving while his license was suspended (“DWLS”). As defendant had
committed three prior DWLS offenses, the State contended that section
322.34(2)(b)2., Florida Statutes (2019), required a mandatory ten-day jail
sentence, which the trial court refused to impose. We reverse, concluding
that the statute requires the mandatory sentence.
On December 24, 2019, appellee ran a stop sign and was issued a traffic
citation. When the officer discovered that appellee’s license was
suspended, he was arrested for DWLS. The traffic citation, the booking
report, and the probable cause affidavit state that appellee had three prior
convictions of DWLS. The State charged appellee with driving on a
suspended license contrary to section 322.34(2)(b), Florida Statutes
(2019). In the information, the State alleged that he had previously been
convicted of DWLS, and it listed only one prior conviction. However,
appellee’s driver’s license record submitted to the court by the State
showed three previous convictions for DWLS.
Appellee entered an open plea of no contest to the court after the court
offered a sentence of an adjudication and payment of court costs. The
State objected because section 322.34(2)(b)2. mandated a ten-day jail
sentence for a third and subsequent convictions. The statute had been
amended in October of 2019 to provide for the jail term. Nevertheless, the
court adjudicated appellee guilty, ordering him to pay court costs. It did
not impose a ten-day mandatory jail sentence required under section
322.34(2)(b)2., concluding that it would be an ex post facto violation to
impose the jail sentence. The State appeals the sentence.
The standard of review of a claim that the trial court imposed an illegal
sentence is de novo. Claycomb v. State, 142 So. 3d 916, 917 (Fla. 4th DCA
2014).
Section 322.34(2) provides for the punishment for DWLS. In 2019, the
Legislature amended the statute to provide for a mandatory jail term for
any person convicted for a third or subsequent conviction for DWLS,
effective October 1, 2019. See Ch. 2019-167, § 322.34, Laws of Fla. The
statute provides:
(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, revocation, or
suspension or revocation equivalent status, drives any motor
vehicle upon the highways of this state while such license or
privilege is canceled, suspended, or revoked, or while under
suspension or revocation equivalent status, commits:
(a) A misdemeanor of the second degree, punishable as
provided in s. 775.082 or s. 775.083.
(b) 1. A misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083, upon a second or
subsequent conviction, except as provided in paragraph (c).
2. A person convicted of a third or subsequent conviction,
except as provided in paragraph (c), must serve a minimum of
10 days in jail.
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(c) A felony of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084, upon a third or
subsequent conviction if the current violation of this section
or the most recent prior violation of the section is related to
driving while license canceled, suspended, revoked, or
suspension or revocation equivalent status resulting from a
violation of:
1. Driving under the influence;
2. Refusal to submit to a urine, breath-alcohol, or blood
alcohol test;
3. A traffic offense causing death or serious bodily injury; or
4. Fleeing or eluding.
§ 322.34, Fla. Stat. (2019). Thus, a first conviction for DWLS is a second
degree misdemeanor. A second and subsequent conviction is a first degree
misdemeanor, although a third and subsequent DWLS conviction can be
a felony if the violation is related to the four violations listed in section
322.34(2)(c). Unless elevated to a felony, a person’s third or subsequent
conviction of DWLS is still a first degree misdemeanor but carries a
mandatory minimum ten-day jail sentence as a penalty.
The trial court refused to apply the mandatory minimum jail sentence
on appellee, because it believed that the amendment was an ex post facto
law as applied to appellee. “Both the United States and Florida
Constitutions prohibit ex post facto laws.” Lescher v. Fla. Dep’t of Highway
Safety & Motor Vehicles, 985 So. 2d 1078, 1081 (Fla. 2008) (citing U.S.
Const. art. I, § 10; art. I, § 10, Fla. Const.). “The United States Supreme
Court has defined an ex post facto law as one that (a) operates
retrospectively, and (b) ‘make[s] innocent acts criminal, alter[s] the nature
of the offense, or increase[s] the punishment.’” Id. (quoting Collins v.
Youngblood, 497 U.S. 37, 46 (1990)).
The Florida Supreme Court has recognized four categories of ex post
facto laws as set forth by the United States Supreme Court in Calder v.
Bull, 3 U.S. (3 Dall.) 386 (1798). Shenfeld v. State, 44 So. 3d 96, 100 (Fla.
2010). Those four categories are as follows:
1st. Every law that makes an action done before the passing
of the law, and which was innocent when done, criminal; and
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punishes such action. 2d. Every law that aggravates a crime,
or makes it greater than it was, when committed. 3d. Every
law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offense, in
order to convict the offender.
Id. (quoting Calder, 3 U.S. (3 Dall.) at 390–91) (emphasis added). Here,
the trial court presumably found that the enhanced penalty of ten days in
jail for a determination under subsection (2)(b)2. for “a third or subsequent
conviction” was ex post facto as applied to appellee’s prior convictions.
The trial court’s application of ex post facto was erroneous.
In Grant v. State, 770 So. 2d 655 (Fla. 2000), the supreme court
addressed the application of ex post facto to the prison releasee reoffender
statute (“PRR”), section 775.082(8), Florida Statutes (1997). The court
analogized the PRR to the habitual offender statute, both of which
increased penalties for acts committed after their passage based upon
prior convictions. Id. at 661. The Grant court explained:
The Act increases the penalty for a crime committed after its
enactment, based upon release from a term of imprisonment
resulting from a conviction which occurred prior to the Act. A
habitual offender sentence is not an additional penalty for an
earlier crime; rather, it is an increased penalty for the latest
crime, which is an aggravated offense because of the
repetition. See Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct.
1256, 92 L. Ed. 1683 (1948); accord McDonald v.
Massachusetts, 180 U.S. 311, 313, 21 S. Ct. 389, 45 L. Ed.
542 (1901) (finding that a statute which imposes a
punishment only on future crimes is not ex post facto, even
though a conviction prior to the statute results in increased
punishment). As the United States Supreme Court has held,
“enhanced sentencing for recidivism does not violate ex post
facto principles despite the fact that the prior offenses forming
a basis for enhancement occurred prior to enactment of the
enhancement provision.” Rollinson, 743 So. 2d at 587 (citing
Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391
(1992)); see also Cross v. State, 96 Fla. 768, 782, 119 So. 380,
385 (1928) (observing that, “[b]ut for the commission of the
subsequent offense, the enhanced penalty would not be
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imposed”); cf. Raulerson v. State, 609 So. 2d 1301 (Fla. 1992)
(rejecting ex post facto challenge to the violent habitual felony
offender provisions of section 775.084, Florida Statutes).
Id. at 661–62. See also Rollinson v. State, 743 So. 2d 585, 587 (Fla. 4th
DCA 1999) (“[T]he United States Supreme Court has held that enhanced
sentencing for recidivism does not violate ex post facto principles despite
the fact that the prior offenses forming a basis for enhancement occurred
prior to enactment of the enhancement provision[.]” (citing Parke v. Raley,
506 U.S. 20 (1992))).
Based on Grant’s reasoning, the amendment to section 322.34 to add
subsection (2)(b)2. is not ex post facto as applied to appellee. The
amendment imposes an increased penalty on appellee for his latest DWLS
because of recidivism. He was charged with DWLS for driving on
December 24, 2019, after the statutory amendment went into effect. Thus,
the statute applied a penalty to the subsequent conviction, not his prior
convictions. Appellee does not argue otherwise. The court erred in
rejecting the mandatory minimum sentence.
Appellee argues, however, that because the information contained only
one prior conviction, he was charged with section 322.34(2)(b)1., and not
(b)2. He claims that it is a due process violation to convict him of a crime
not charged. In support, he relies on Keels v. State, 792 So. 2d 1249 (Fla.
2d DCA 2001), where the court stated:
A conviction on a charge not contained in the information is a
due process violation that may be raised at any time,
including appeal. See Fulcher v. State, 766 So. 2d 243 (Fla.
4th DCA 2000) (citing State v. Gray, 435 So. 2d 816 (Fla.
1983)). “It is fundamental error where a defendant pleads to
one crime but is convicted of a greater crime with which he
was never charged.”
Id. at 1250 (quoting Cuevas v. State, 770 So. 2d 703, 704 (Fla. 4th DCA
2000)).
Keels is inapplicable. Here, the information charged appellee with a
violation of section 322.34(2)(b), which is a first degree misdemeanor.
Section 322.34(2)(b)2. simply increases the crime’s penalty but not its
degree.
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In State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996), we considered
a similar issue regarding DUI convictions. The DUI statute under review
in Haddix provided that a conviction for DUI without personal injury or
property damage was a misdemeanor. A second or subsequent conviction
raised the penalty, but the fourth conviction constituted a felony. The
State charged the defendant with misdemeanor DUI but did not list any
prior convictions. At sentencing, the State proved that defendant had a
prior DUI conviction. Over the defendant’s objection that he had no notice
that the State would request the higher penalty which the statute imposed
on a second DUI conviction, the trial court concluded that the information
did not require the listing of the prior convictions, as it was not an essential
element of the crime.
On a certified question from the county court, we agreed with the trial
court that the prior convictions were not essential elements of the crime,
because they affected only the penalty and not the degree or level of the
crime. The prior conviction related only to sentencing, not to the crime
itself; therefore it did not have to be alleged in the information. Id. at 1067.
Moreover, the defendant was charged with notice of the law, and the
statute clearly set forth the penalties for additional convictions for DUI.
“Accordingly, we conclude that the state should not be required to allege
prior DUI convictions in the charging document where the prior
convictions affect only the enhanced misdemeanor penalty to be imposed
and do not elevate the level of the crime.” Id.
In like manner, in this case, the number of DWLS convictions did not
change the degree or level of the crime charged, it only increased the
penalty. Appellee was convicted of a first degree misdemeanor, the crime
set forth in the information. Therefore, the fact that two prior convictions
were not listed in the information did not change the crime charged. No
fundamental error occurred, and appellee never raised the issue of a defect
in the information in the trial court or argued to the court that he was
prejudiced by the failure to allege both prior convictions.
Lastly, appellee seeks to support affirmance based upon a right-for-the-
wrong-reason argument that the statute is unconstitutional as applied to
his circumstance. This alternative argument was not raised in the trial
court and may not be raised for the first time on appeal. See Trushin v.
State, 425 So. 2d 1126, 1129–30 (Fla. 1982).
For the foregoing reasons, we reverse the sentence imposed by the trial
court and remand for further proceedings. Because appellee’s plea was
based upon the trial court’s promised sentence, the trial court must first
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afford him the opportunity to withdraw it. Goins v. State, 672 So. 2d 30
(Fla. 1996).
Reversed and remanded for further proceedings in accordance with this
opinion.
CONNER, C.J., and GROSS, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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