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Whipple v. State6/27/2001
and largely automatic effect on the range of the defendant's punishment. See id. (quoting Zambuto v. State, 413 So. 2d 461, 462 (Fla. 4th DCA 1982)).
In Daniels, this court held that a defendant's plea was involuntary, absent his understanding that his driver's license would be revoked. The defendant entered pleas of nolo contendere to possession of cocaine and possession of less than 20 grams of cannabis. At no time was the defendant informed that as a result of his plea, his driver's license would be revoked pursuant to section 322.055(1). At sentencing, the court imposed the mandatory license revocation.
The defendant moved to withdraw his plea on the grounds that he was never advised by counsel about the license suspension. He claimed that he never would have entered the plea had he known of the license suspension. In reversing, this court held that the license revocation mandated by statute was definite, immediate and automatic upon his conviction. Thus, the revocation was a "consequence" of the plea under Ashley and a "penalty" contemplated by Rule 3.172(c)(1). See Daniels, 716 So. 2d at 828-29. The court noted that the transcript of the sentencing hearing supported the defendant's claim that the suspension surprised him and that because he was placed on probation and not sentenced to a lengthy term of imprisonment, the effect of the license suspension upon him was not minimal. Thus, prior to accepting the plea, the trial court was required to determine that appellant understood that he was subject to a suspension under 322.055(1).
In this case, while appellant was advised that there would be a license revocation, he was never told that there could be a permanent license revocation. Salerno testified that he was surprised by the permanent revocation because he did not believe that section 322.28 called for such a sanction in this case. Salerno stated that while he and appellant discussed a driver's license suspension, he could not recall whether he told appellant about a five or ten year suspension. He did, however, recall that he did not discuss the possibility of a lifetime suspension.
Clearly, the revocation of appellant's license was a direct consequence of his plea. Although he was informed that there would be a license revocation, and that there was no guarantee as to what his sentence would be, he was misadvised or uninformed that a lifetime suspension was a possible consequence. Further, the effect of such revocation would not be minimal given the victim's insistence that appellant be able to work and make restitution. A permanent revocation would have direct impact on appellant's ability to make restitution. As in Daniels, the court was required to determine that appellant understood that he was subject to section 322.28 and a permanent revocation. Moreover, the trial court erroneously relied upon section 316.655 and never informed appellant of that fact until the pronouncement of sentence.
Lastly, we affirm the trial court's assessment of victim injury points on the guidelines scoresheet. See Scholz v. State, 734 So. 2d 526 (Fla. 4th DCA 1999)(addition of victim injury points to defendant's sentencing guidelines scoresheet was not "double scoring," notwithstanding defendant's claim that death of victim was an element of DUI manslaughter); see also Trombley v. State, 754 So. 2d 121 (Fla. 5th DCA 2000)(victim injury points could be assessed for the crime of DUI causing serious bodily injuries, even though personal injuries were inherent elements of the crime).
Affirmed in part; reversed in part and remanded to allow appellant to withdraw plea.
WARNER, C.J., and FARMER J., concur.
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