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Rodgers v. State12/5/2001
ation. Thus it is not necessary for the state to prove each separate conviction of DWLS which DMV relied on in revoking the license.
To sum up the requirements for a conviction under section 322.34, the statute as written by the Legislature merely makes it necessary for the state to prove by competent evidence that DMV maintains a record on the motorist, that its record shows the requisite three separate DWLS convictions within a 5-year period, and that DMV gave the motorist the statutory notice. These statutes 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.
We disagree with the contrary holding on this issue in Sylvester v. State, 770 So. 2d 249, 251 (Fla. 5th DCA 2000). Sylvester analogized the section 322.34(5) offense for driving while a license has been revoked with the entirely inapposite offense of driving under the influence (DUI) with three prior DUI convictions. The manner of proving a violation for the offense under section 322.34, on the one hand, and the DUI offense, on the other, is not the same because they are defined differently in the texts of the respective statutes.
The DUI statute is so framed as to make the prior convictions an element of the DUI offense, i.e. driving while under the influence with three prior convictions for the same offense. In contrast, under section 322.34(5) the offense is driving when a DMV revocation of the motorist's license is in effect. The Legislature could have constructed section 322.34 so that the offense was defined as driving with three prior convictions for DWLS, but it did not do that. The burden of proof created by the Legislature in section 322.34 as actually written was therefore merely to establish the fact of revocation by DMV, appropriate notice to the motorist of such revocation, and the fact of driving while the license was revoked. That was done prima facie here. We are in conflict with the Fifth District in Sylvester.
We are unable to see an Apprendi problem. Apprendi v. New Jersey, 530 U.S. 466 (2000), requires a jury resolution when any fact other than a prior conviction increases the penalty for an offense. See id. ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime ... must be ... proved beyond a reasonable doubt."). Under section 322.34(5), the three prior DWLS convictions do not increase the penalty. Instead they are the basis for the agency's action in revoking a license. The offense is in driving after the license has been revoked. The penalty is for that offense, not for having three convictions of DWLS. It would be the penalty whatever the reason for the revocation. It seems to us that the notion behind the drafting of section 322.34(5) is to punish a motorist for acting contrary to agency action revoking his license, not to increase the penalty for another offense of DWLS.
We reject defendant's argument that the statutory scheme which we have discussed above is unconstitutional. See Raulerson v. State, 763 So. 2d 285 (Fla. 2000).
AFFIRMED.
STEVENSON and GROSS, JJ., concur.
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