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Arthur v. State4/26/2002
Appeal from the Circuit Court for Lake County, G. Richard Singeltary, Judge.
EN BANC
We elect to consider this case en banc. Here, Arthur was charged with violating sections 322.34 and 322.264, Florida Statutes, because he was caught driving a vehicle after being notified that he had been designated an "habitual traffic offender" according to the records maintained by the Department of Highway Safety and Motor Vehicles (Department) resulting in his driving privileges being revoked. Section 322.34(5), Florida Statutes makes it a third-degree felony for one whose driver's license has been revoked as an habitual offender to drive a motor vehicle upon the highways of this state. Thus, the elements of the offense are (1) that while defendant's license was revoked as an "habitual offender" (2) he drove a motor vehicle upon the highways of this state.
Section 322.264, Florida Statutes, defines "habitual traffic offender" as "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 five year period." (Emphasis added). Section 322.27(5), Florida Statutes, mandates that the Department revoke the license of anyone designated an habitual offender. To show that Arthur had been so designated and that his license had been so revoked, the State introduced a certified copy of defendant's entire driving record showing his classification as an habitual traffic offender (as well as his numerous convictions) and the revocation of his driving license. Since the definition of one of the elements, habitual traffic offender, incorporates the Department's records, it is essential that such records, or at least the relevant portions thereof showing such designation and revocation, be proved to the jury. These records are admissible under section 322.201, Florida Statutes.
The charged offense in this case was not that Arthur had committed a set number of previous offenses for which judgments had been entered as in the case of felony DUI which was being considered by the court in State v. Harbaugh, 754 So. 2d 691 (Fla. 2000). Here, Arthur's charged offense was continuing to drive after being notified that the Department had determined that he was an habitual traffic offender and that his license had been revoked for that reason. If after receiving the notice of revocation Arthur believed his driving record was in error his remedy was to have his record corrected, not to ignore the revocation and continue to drive. Arthur does not contend he was without knowledge of the revocation. Nor did he suggest below that the driving record introduced was not his. Arthur's objections to the introduction of his driving record were (1) hearsay, (2) not the best evidence, and (3) denial of his right of confrontation.
On appeal, Arthur urges that the State failed to allege in the information the specific prior offenses which led to his being designated an habitual traffic offender. But it is the fact that the Department has designated the defendant as an habitual traffic offender based on his driving record and has thereby revoked his license, and not the underlying traffic offenses themselves, which is the element of the offense. Specifically designating the numerous traffic citations or offenses which led to the designation is not required. To state it simply, the law requires that one whose license is revoked because he is an habitual traffic offender must not drive unless or until his revocation is set aside. The State proved that Arthur's was, that he did, and that it wasn't.
Also on appeal, Arth
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