In an enbanc decision the Second District reversed a felony conviction for driving with a suspended license after being designated a habitual offender under 322.34(5). In doing so, it receded from its earlier position in Carroll v. State, 761 So. 2d 417 (Fla. 2d DCA 2000).
Section 322.34(5) makes it a 3d felony for any person to drive in the State of Florida after having his or her license suspended, revoked or cancelled as a result of being designated a habitual offender. The issue here was that Mr. Burgess never had a valid driver’s license, and as such he filed a motion to dismiss and argued that he could not be prosecuted under the section, regardless of his habitual status, because a license was a required element. The 2DCA in Carroll ruled the opposite. In Carroll, the DCA accepted the State’s position that the statute’s reference to “driving privilege” along with “driver’s license” permitted a broad interpretation that would treat the phrases interchangeably. Thus, in Carroll, regardless whether the defendant ever had a license, the felony conviction under 322.34(5) was sustained. In its enbanc decision, the 2DCA overruled Carroll, and held that the plain meaning of the statute requires that the state prove that a defendant had a driver’s license, and that it was suspended, revoked or canceled regardless of the habitual status.
Mr. Burgess could only be convicted of driving without a valid license, a misdemeanor.