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[W] Sorrell v. State8/27/2003
atutes permit the state to make this proof by presenting a certified copy of the motorist's driving record maintained by DMV. That is what the state did in its prosecution in this case. Hence the state made out a prima facie case, which allowed the trier of fact to find defendant guilty of the section 322.34(5) violation.
Id.; see also State v. Fields, 809 So. 2d 99, 101 (Fla. 2d DCA 2002) (following Rodgers). Because the statute in Rodgers is so similar to section 322.341, Rodgers compels the conclusion that in this case the state made a prima facie case by introducing a copy of the driving record which showed the requisite permanent revocation on its face.
It is appellant's second argument that has merit. In Critchfield, the supreme court declared that Chapter 98-223, Laws of Florida, violated the single subject rule in Article III, Section 6 of the Florida Constitution. Section 13 of Chapter 98-223 created the crime at issue in this case, driving under a permanent license revocation, a third degree felony. The supreme court's decision turned on section 2 of Chapter 98-223, which created section 832.10, involving a payee's placement of a worthless check for collection by a private debt collector prior to presenting the check to the state attorney for prosecution. The supreme court wrote that section 2 had "no natural or logical connection to driver's licenses, operation of motor vehicles, or vehicle registrations. Thus, we conclude that chapter 98-223 violates the single subject rule." Critchfield, 842 So. 2d at 786. Because the statute creating section 322.341 is unconstitutional, appellant cannot be convicted of that crime. See McCormick v. State, 826 So. 2d 476, 477 (Fla. 5th DCA 2002).
The next question is what happens to appellant's conviction once section 322.341 is declared unconstitutional, rendering the charge a non-existent crime. At trial, the court did not instruct the jury on any lesser included offenses to the section 322.341 charge. Therefore, appellant may not be retried on any lesser included offenses of section 322.341. See State v. Gibson, 682 So. 2d 545 (Fla. 1996); followed upon remand, 685 So. 2d 76, 77 (Fla. 1st DCA 1996).
The judgment and sentence for the conviction of section 322.341 are reversed and remanded for discharge.
POLEN and WARNER, JJ., concur.
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