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Dep't of Highway Safety and Motor Vehicles v. Brandenburg12/3/2004
The Department of Highway Safety and Motor Vehicles appeals from an order of the county court which required the Department to revoke Deborah Brandenburg's driver's license, effective nunc pro tunc, to a date different than that of her conviction for DUI, pursuant to section 316.193. The court also certified the following questions as being ones of great public importance:
DOES THE REVOCATION OF A DEFENDANT'S DRIVER'S LICENSE PURSUANT TO FLORIDA STATUTE 322.28(1)(a)(1) FROM THE DATE OF CONVICTION AS PART OF A SENTENCE VIOLATE EQUAL PROTECTION OR DUE PROCESS LAWS OR DOUBLE JEOPARDY OR THE SEPARATION OF POWERS UNDER THE STATE AND FEDERAL CONSTITUTIONS WHEREIN THE DEFENDANT HAS ALREADY SERVED A DRIVER'S LICENSE SUSPENSION AS A RESULT OF HER ARREST FOR DUI PURSUANT TO FLORIDA STATUTE 322.2615 PRIOR TO TRIAL?
We accepted discretionary jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160. We answer the question as to double jeopardy as "no" and decline to address issues concerning equal protection, due process and separation of powers because they were not argued to the county court and they are not fully briefed on appeal. In addition, the appellee, Brandenburg, has elected not to file a brief in this cause. We reverse the county court's requirement that the period of revocation run nunc pro tunc to a date other than the date of Brandenburg's conviction.
The facts in this case are not in dispute. Brandenburg was arrested on November 5, 2002 for driving under the influence of alcohol or drugs. It was her first offense for DUI. The arresting officer suspended her license for 180 days, pursuant to section 322.2615(1)(a). The statute provides:
A law enforcement officer or correctional officer shall, on behalf of the Department, suspend the driving privilege of a person who has been arrested by a law enforcement officer for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level,...
The statute further provides the required times for the suspension. In this case, a first offense, the time was a period of six months.
On October 10, 2003, Brandenburg pled nolo contendere, and was convicted of DUI. She was sentenced to twelve months on probation, and the court also provided that her driver's license be revoked for six months, nunc pro tunc to November 17, 2002. After her conviction, the Department, which was not a party to the criminal case, suspended Brandenburg's license, acting pursuant to section 322.28(2)(b). That statute provides:
If the period of revocation was not specified by the court at the time of imposing sentence or within 30 days thereafter and is not otherwise specified by law, the department shall forthwith revoke the driver's license or driving privilege for the maximum period applicable under paragraph
(a) for a first offense....
In turn, subsection (2)(a) provides maximum and minimum times for which a license must be revoked for first convictions, second convictions, and third convictions. That section states:
(2) In a prosecution for a violation of s. 316.193 or former s.316.1931, the following provisions apply:
(a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver's license or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions: For a first conviction not involving a death, the period specified is not less than 180 days and the maximum time is one year. The Department suspended Brandenburg's license for six months, commencing from the date
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