Supreme Court of Florida
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No. SC16-1170
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STATE OF FLORIDA,
Petitioner,
vs.
DARYL MILLER,
Respondent.
[September 28, 2017]
QUINCE, J.
This case is before the Court for review of the decision of the Third District
Court of Appeal in State v. Miller, 193 So. 3d 1001 (Fla. 3d DCA 2016), which
certified conflict with decisions of the Second, Fourth, and Fifth District Courts of
Appeal in Carroll v. State, 761 So. 2d 417 (Fla. 2d DCA 2000); Newton v. State,
898 So. 2d 1133 (Fla. 4th DCA 2005); and State v. Bletcher, 763 So. 2d 1277 (Fla.
5th DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the
reasons that follow, we approve the Third District’s decision below and disapprove
the conflict cases to the extent that they are inconsistent with this opinion.
I. Background
On May 21, 2014, Daryl Miller was charged with violating section
322.34(5), Florida Statutes (2017), which provides a third-degree felony penalty
for “habitual traffic offenders” who drive with a driver license that has been
revoked under section 322.264, Florida Statutes (2017). Miller filed a sworn
motion to dismiss. In support of his motion, Miller argued that he had never
possessed a Florida driver license and therefore could not be convicted pursuant to
section 322.34(5), Florida Statutes. The trial court granted Miller’s motion and
reduced his charges to driving without a valid driver license. The State appealed.
The Third District affirmed the trial court’s order, aligning its decision with
the First District’s decision in Crain v. State, 79 So. 3d 118, 122 (Fla. 1st DCA
2012). See Miller, 193 So. 3d at 1002. The Third District concluded that
possession of a Florida driver license is a prerequisite for a section 322.34(5)
offense and certified conflict with the Second, Fourth, and Fifth District Courts of
Appeal. Id. at 1002-03. We agree with the Third and First Districts that
possession of a driver license is a prerequisite to a conviction pursuant to section
322.34(5).
II. Analysis
The plain language and construction of a statute are reviewed de novo. See
Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007). “When the statute is clear and
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unambiguous,” we use its plain language and avoid rules of statutory construction.
Daniels v. Fla. Dept. of Health, 898 So. 2d 61, 64 (Fla. 2005); see also W. Fla.
Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 9 (Fla. 2012). We first examine the plain
language of the section under review.
Section 322.34(5), Florida Statutes, provides the following:
Any person whose driver license has been revoked pursuant to
s. 322.264 (habitual offender) and who drives any motor vehicle upon
the highways of this state while such license is revoked is guilty of a
felony of the third degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
Section 322.264, Florida Statutes, defines a habitual traffic offender as a person
who has accumulated a combination of specified offenses.1 The Legislature
1. Section 322.264, Florida Statutes, provides the following:
“Habitual traffic offender” defined.—A “habitual traffic
offender” is any person whose record, as maintained by the
Department of Highway Safety and Motor Vehicles, shows that such
person has accumulated the specified number of convictions for
offenses described in subsection (1) or subsection (2) within a 5-year
period:
(1) Three or more convictions of any one or more of the
following offenses arising out of separate acts:
(a) Voluntary or involuntary manslaughter resulting from the
operation of a motor vehicle;
(b) Any violation of s. 316.193, former s. 316.1931, or former
s. 860.01;
(c) Any felony in the commission of which a motor vehicle is
used;
(d) Driving a motor vehicle while his or her license is
suspended or revoked;
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defined driver license as “a certificate that, subject to all other requirements of law,
authorizes an individual to drive.” § 322.01(17), Fla. Stat. (2017).
The 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.
The State contends that this Court must look to other sections of Chapter
322 to determine the plain meaning of “driver license” in section 322.34(5)
because the plain meaning of a word is derived from its context. The State asks us
to find “driver license” and “driving privilege” interchangeable, consistent with its
practice of charging drivers who have never had a driver license under statutes
with “driving privilege” penalties. However, statutory construction is
inappropriate because section 322.34(5) is not ambiguous.
(e) Failing to stop and render aid as required under the laws of
this state in the event of a motor vehicle crash resulting in the death or
personal injury of another; or
(f) Driving a commercial motor vehicle while his or her
privilege is disqualified.
(2) Fifteen convictions for moving traffic offenses for which
points may be assessed as set forth in s. 322.27, including those
offenses in subsection (1).
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Even if section 322.34(5) were ambiguous as the State contends, the canons
of statutory construction do not support the State’s interpretation. One rule of
construction this Court employs is the principle of in pari materia, which provides
that statutes with similar subjects should be construed together to synchronize their
meaning and give effect to the intent of the Legislature. See Patrick v. Hess, 212
So. 3d 1039, 1042 (Fla. 2017). This Court also endeavors to give meaning to each
word of a statute rather than treat any word as “mere surplusage.” Heart of
Adoptions, Inc. v. J.A., 963 So. 2d 189, 198-99 (Fla. 2007). Where the Legislature
enumerates items to the exclusion of others, the canon of construction expressio
unius est exclusio alterius encourages the interpretation that the Legislature
purposefully excluded items not mentioned. Thayer v. State, 335 So. 2d 815, 817
(Fla. 1976). With these principles in mind, we turn to the statutes.
A person operating a motor vehicle on the roads of this State must possess a
valid license issued by the State of Florida or fall under an exception to licensure.
§ 322.03(1), Fla. Stat. (2017). One exception includes nonresidents who possess a
valid driver license issued by their home states. §§ 322.04(1)(c)-(d), Fla. Stat.
(2017). Exceptions also exist for federal government employees operating a
government vehicle for official business, any person operating a road machine or
tractor, and any person operating a golf cart. §§ 322.04(1)(a)-(b), (e), Fla. Stat.
(2017).
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Considering these sections in pari materia, the Legislature’s use of “driving
privilege” refers to all the individuals who may lawfully operate vehicles on
Florida’s roads, even if they do not possess a Florida driver license. Individuals
like Miller, who drive in Florida without ever having obtained a license or having
an exemption to licensure, do not have any “driving privilege.” We cannot find
that both terms mean the same thing because doing so improperly treats the words
as “mere surplusage.” Heart of Adoptions, 963 So. 2d at 198-99.
Individuals like Miller are guilty of a second-degree misdemeanor for
violation of section 322.03, Florida Statutes. See § 322.39, Fla. Stat. (2017). The
Legislature has not articulated enhanced penalties for individuals who accumulate
multiple violations of section 322.03. The statute under review, section 322.34(5),
Florida Statutes, only provides enhanced penalties for individuals who continue to
drive after having had a valid driver license revoked.
In contrast, the statute criminalizing driving under the influence (DUI)
targets any person “driving or in actual physical control of a vehicle” while
impaired by alcohol or other substances, including individuals who drive without
ever having obtained a license and those who drive without having an exemption to
licensure. See § 316.193, Fla. Stat. (2017). In addition, section 322.34(6)(a),
Florida Statutes, contemplates a felony penalty for any person who has never
obtained a license who kills or causes bodily injury to someone while driving. The
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Legislature could have included individuals who do not have a license or exception
to licensure along with license holders in section 322.34(5) as it did in other
subsections. See Thayer, 335 So. 2d at 817. It did not do so.
III. Conclusion
Having a driver license that has been revoked under the habitual traffic
offender statute, section 322.264, Florida Statutes, is a necessary element of a
section 322.34(5) offense. Therefore, defendants who have never possessed a
driver license may not be charged under section 322.34(5). We approve the Third
District’s decision below and disapprove the conflict cases to the extent that they
are inconsistent with this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and LAWSON, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
As part of a plea agreement in a separate case, the State has agreed that even
if it were to prevail here and the charged violation of section 322.34(5) were to be
reinstated against Miller, it will not continue to prosecute Miller for a violation of
section 322.34(5) in this case. The question of whether Miller can be convicted of
violating section 322.34(5) therefore is now moot. Because the parties are seeking
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a purely advisory opinion—an opinion that has no bearing on the disposition of
this case—I would dismiss this proceeding. “It is the function of a judicial tribunal
to decide actual controversies by a judgment which can be carried into effect, and
not . . . to declare principles or rules of law which cannot affect the matter in
issue.” Montgomery v. Dep’t of Health & Rehab. Servs., 468 So. 2d 1014, 1016-
17 (Fla. 1st DCA 1985).
Contrary to the State’s claims, this case does not fall in the category of cases
“capable of repetition yet evading review.” Johnson v. State, 60 So. 3d 1045, 1049
(Fla. 2011) (quoting State v. Matthews, 891 So. 2d 479, 484 (Fla. 2004)). The
State itself is wholly responsible for rendering this case moot. A party should not
be heard to assert that a recurring issue will evade review when that party itself has
rendered moot the case presenting the issue for review. Accordingly, I dissent.
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions
Third District - Case No. 3D15-628
(Miami-Dade County)
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau
Chief, Michael W. Mervine, and Marlon J. Weiss, Assistant Attorneys General,
Miami, Florida,
for Petitioner
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Carlos J. Martinez, Public Defender, John Eddy Morrison, and Shannon
Hemmendinger, Assistant Public Defenders, Eleventh Judicial Circuit, Miami,
Florida,
for Respondent
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