Double-Jeopardy Issues with Suspended License Cases

Just a quick post on double-jeopardy issues with suspended license cases

Early on, prior to the Blockberger case, a person could be found guilty of Driving While License Suspended [DWLS] and No Valid Drivers License [NVDL]. Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969).  Then, some 31 years later, the 5th DCA decided that a Defendant cannot be found guilty of both DWLS and NVDL. Roedel v. State, 773 So.2d 1280 (Fla. 5th DCA 2000).

A Defendant cannot be found guilty twice for a single episode of DWLS. Hallman v. State, 492 So.2d 1136 (Fla. 2d DCA 1986).

A Defendant cannot be found guilty of Felony DWLS [F-DWLS] and DWLS-HTO for same act. Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002).

A Defendant can be found guilty of DWLS with permanently revoked [DWLS-PR] license and DWLS-HTO for same act. Webb v. State, 816 So.2d 1190 (Fla. 4th DCA 2002).

Now it gets confusing . . .
Can a Defendant be found guilty of Driving While License Suspended AND Driving While License Suspended as a Habitual Traffic Offender?

The state may prosecute for violation of DWLS and DWLS as a Habitual Traffic Offender [DWLS-HTO] under “same elements test” and is not double jeopardy. State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 2000).

but, . . .

A Defendant cannot be found guilty of DWLS and DWLS-HTO based on “primary evil” under “degree variants” analysis. Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006).

but wait, . . .

A Defendant can be found guilty of DWLS and DWLS-HTO based on “degree variants” analysis (completely avoiding “primary evil” test, no mention of Duff case, and a confusing look at “penalties,” whether they are “moving violations,” if they receive “points,” etc.). State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011).

When someone figures out what the Gil case is trying to say please comment or contact me and let me know.


Can A Fixed “Suspension” Thwart a Conviction for DWLS-HTO

Airline Highway, Metairie, Louisiana. Louisian...

Airline Highway, Metairie, Louisiana. Louisiana Department of Motor Vehicles office. (Photo credit: Wikipedia)

I have been perplexed by an issue that seems to depend on the Court I am before. When a client hires me with a new law offense for driving while his license has been suspended as a habitual traffic offender [HTO] and I am able to remove the HTO status and get him a valid drivers license, can the state still prove their case? The statute  (s.322.264) defines HTO as “[a] ‘habitual traffic offender’ is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles [DMV], shows that such person has accumulated the specified number of convictions for offenses described in . . .”  Some judges will note the new driving record and find no factual basis for the offense causing the state to drop their case. Other judges are under the belief that it is what the Department records reflected on the day of the arrest and will not dismiss for lack of factual basis.

The “No Factual Basis” Argument

In Rodgers v. State, 804 So.2d 480 (Fla. 4th DCA 2002), the appellate court was presented with the question of whether a computer printout of the defendant’s driving record (as maintained by the Department) was sufficient to present a prima facie case for the first two elements of the offense of driving while license suspended for HTO [DWLS-HTO](that 1. the defendant’s license was suspended under s. 322.264, and 2. that the Department gave notice of the suspension to the defendant). The answer was in the affirmative.

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.

Id. at 483.

Typically, the state has in their possession (and they provide through discovery) a copy of the defendant’s driving record that is usually within a month of the arrest but not on the date of the arrest. This record will show that on a specific date before the arrest the defendant’s license was suspended for a period of time that extended through the date of arrest. It will also show a date that is allegedly the date notice was sent to the defendant. According to Rodgers, this is all they need to introduce to get past a judgment of acquital [JOA] for the first two elements of the offense. See Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002); Bowen v. State, 833 So.2d 288 (Fla. 5th DCA 2002);  see also, Card v. State, 927 So.2d 200 (Fla. 5th DCA 2006).

By logical implication a record, as maintained by the Department, that does not show a suspension prior to the date of the arrest would not present a prima facie showing to withstand a JOA.

As Maintain on the Date of Arrest

The other argument is that it doesn’t matter that the record has been “fixed” it just matters whether or not the Department maintained a record on the day of the arrest that reflected a suspension and notice. This theory is supported by State v. James, 928 So.2d 1269 (Fla. 2d DCA 2006).

In James, the court states that “[e]ven if Mr. James is successful in vacating his Hillsborough County conviction, the DMV records would be affected only from the date that the conviction was set aside.” However, the court seems to make several presumptions in this case. For instance, the court presumes that the record reflected a third conviction and that the DMV record was “accurate.” Moreover, the court points out that the DMV record only need show that the driver’s privilege had been suspended “at the time” the driver was stopped.

State’s Record vs. Defendant’s Record

Let’s say the Driver is stopped on day 1 and cited for DWLS-HTO. On day 20 the State runs a DMV record and it indicates that the Driver was designated HTO on day -10. Their DMV record would then show that from day -10 to day 20 the DMV maintained a record that indicated the Driver was HTO. On top of that, the record would reflect that the suspension was for 5-years. Then let’s say the Driver fixes his DMV record and on day 50 the DMV record does not show an HTO designation at all. Once fixed, and once there are no longer the prerequisite offenses for HTO designation, the DMV redacts the suspension from their maintained records.  Now, should a trial occur, the state would have a record on day 20 showing an HTO designation, the Driver would have a record on day 50 showing no designation, and no one would have anything showing what the DMV had maintained on their records on the day of the offense.

The definition of HTO refers to the records “as maintained by the DMV.” In the scenario above, the maintained records on the day of the trial would not show the suspension. However, James suggests that it is what the records reflect at the time of the offense. The state can only show what the records reflected on day 20. Is this enough for a judgment of acquittal? It is definitely enough to argue that the charge has not been proven beyond a reasonable doubt. And if the State tries to argue that the record was “fixed” object as to facts not in evidence (unless they have done their due diligence and produced the certified records of the “fix”).

So the question remains, can a fixed suspension thwart a conviction for DWLS-HTO?

As of the day of this post I have yet to go to trial and argue this issue.

What can you do with a BPO drivers license?

I’m always looking for cases that define what can be done with a BPO license.  I want to do a blog listing cases with activities.  Please forward me any additional cases that you may have:

Britt v. State, 50 Fla. Supp. 2d 16 (9th Jud. Cir., 1991)

Allert v. State, 9 Fla. L. Weekly Supp. 499c (20th Jd. Cir., 2002)

State v. Quiroli, 9 Fla. L. Weekly Supp. 780b (15th Jud. Cir., Sep 12, 2002)

Vilches v. State, 12 Fla. L. Weekly Supp. 530a (11th Jud. Cir., Mar 29, 2005)

Please comment with cases or email me at

Eric J Dirga, PA

FLA Expungements: A Brief History, Part 2.

florida expungement history part 2
Ah, Part 2 of the amazing History of Florida Expungements. There is never a dull moment at the Florida Appellate Courts. Prepare to have your mind blown as you read about burden shifting and the factual basis. Put your seat belts on…


Green v. State

It seems obvious that a “petitioner” for relief would carry the burden.  The question with sealing or expunging a criminal record in Florida is whether meeting all the statutory and rule criteria shifts the burden to the state?  This has become a more interesting issue due to recent opinions that have come down from the higher courts.  To really get at this issue we need to delve back to a short little case called Green v. State, 505 So.2d 38 (Fla 4th DCA 1987).  This case is brief and to the point:

“Not only do appellant’s petition and affidavit meet the statutory criteria, but the forms appellant has used have been approved by the supreme court.  Since appellant’s petition was alternatively titled ‘Petition to Expunge or Seal,’ the trial court abused its discretion in denying appellant’s petition where appellant met the criteria for the sealing of criminal history records as provided by section…”

This seems to suggest that once the petitioner has fulfilled the requirements of the statute the court is obliged to grant the petition absent an objection from the state.

Anderson v. State

Ten years later, in a case called Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997), the court was a bit bolder in its position and clarified it this way, it stated that:

“It is our view that once an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records.”

This refers to the Rules of Criminal Procedure and “court records” and seems to suggest that the court is bound to seal the court records so long as the Rules have been followed.  Non-judicial records are governed by statute.

Kanji v. State

The court said that denial of the petition was discretionary but, if all requirements had been met, the court was required to give “good reason for denial based on the facts and circumstances of the individual case.” Id. at 252.  Moreover, “the exercise of discretion contemplates that the court will make its decision based on consideration of all the facts and circumstances, rather than deciding the petition solely on the nature of the charge.” Id. at 254: Kanji v. State, 4 So.3d 65 (Fla. 5th DCA 2009)(reiterating that the term “sole discretion” is not unfettered discretion permitting the arbitrary denial of an expunction).

Baker v. State

Now the shift of the burden is seemingly complete upon meeting the statutory criteria (for non-judicial records) and the criteria required to be met in the Florida Rules of Criminal Procedure (judicial records).  In Baker v. State, 36 Fla. L. Weekly D275a (Fla. 1st DCA, Feb 7, 2011), the court, referencing the statutory and rules requirements, stated that although “these authorities do not confer a right to expunction on the petitioner, satisfaction of their requirements does create a presumption in favor of expunction.”  The court went on to state that “it is an abuse of discretion [the standard by which appellate courts review denials*] for the trial court to deny the petition without a factual basis.” Id. (citations omitted).


In order for the court to have a factual basis to support the denial of a petition to expunge (that has met all statutory and rule requirements) the court must rely on “the facts and circumstances of the individual case.”  Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009)(emphasis added).  In Harman, the trial court denied the petition based solely on argument of the prosecutor despite the petitioners compliance with all requirements.  No testimony or documentation was offered by the state.  The Harman court found this to be an abuse of discretion (even though the petitioner failed to object to the state’s argument). Id. at 899; see also VFD v. State, 19 So.3d 1172 (Fla. 1st DCA 2009)(stating that “[i]n the absence of evidence presented at the hearing to support the prosecutor’s representations, the trial court had no specific factual basis to support the denial of VFD’s petition to expunge”).  Thus, as the First and Second DCA have articulated, actual evidence must be properly admitted to form a factual basis for a trial court to rely on in denying a petition that has met all statutory and rule requirements.

*Oymayan v. State, 765 So.2d 812, 814 (Fla. 1st DCA 2000); VFD v. State, 19 So.3d 1172, 1174 (Fla. 1st DCA 2009).

…to be continued.

Read Florida Expungement History, Part 1