STATE OF FLORIDA v. BRYANT MOSS ( 2021 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    STATE OF FLORIDA,
    Appellant,
    v.
    BRYANT MOSS,
    Appellee.
    No. 4D21-347
    [September 15, 2021]
    Appeal from the County Court for the Seventeenth Judicial Circuit,
    Broward County; Robert F. Diaz, Judge; L.T. Case Nos. 20-000094MM10A
    and 20-000027AC10A.
    Michael J. Satz, State Attorney, and Joanne Lewis, Assistant State
    Attorney, Fort Lauderdale, and Ashley Moody, Attorney General,
    Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm
    Beach, for appellant.
    Gordon Weekes, Public Defender, and Sarah Sandler, Assistant Public
    Defender, Fort Lauderdale, for appellee.
    WARNER, J.
    The State appeals a final order imposing a sentence on defendant for
    driving while his license was suspended (“DWLS”). As defendant had
    committed three prior DWLS offenses, the State contended that section
    322.34(2)(b)2., Florida Statutes (2019), required a mandatory ten-day jail
    sentence, which the trial court refused to impose. We reverse, concluding
    that the statute requires the mandatory sentence.
    On December 24, 2019, appellee ran a stop sign and was issued a traffic
    citation.   When the officer discovered that appellee’s license was
    suspended, he was arrested for DWLS. The traffic citation, the booking
    report, and the probable cause affidavit state that appellee had three prior
    convictions of DWLS. The State charged appellee with driving on a
    suspended license contrary to section 322.34(2)(b), Florida Statutes
    (2019). In the information, the State alleged that he had previously been
    convicted of DWLS, and it listed only one prior conviction. However,
    appellee’s driver’s license record submitted to the court by the State
    showed three previous convictions for DWLS.
    Appellee entered an open plea of no contest to the court after the court
    offered a sentence of an adjudication and payment of court costs. The
    State objected because section 322.34(2)(b)2. mandated a ten-day jail
    sentence for a third and subsequent convictions. The statute had been
    amended in October of 2019 to provide for the jail term. Nevertheless, the
    court adjudicated appellee guilty, ordering him to pay court costs. It did
    not impose a ten-day mandatory jail sentence required under section
    322.34(2)(b)2., concluding that it would be an ex post facto violation to
    impose the jail sentence. The State appeals the sentence.
    The standard of review of a claim that the trial court imposed an illegal
    sentence is de novo. Claycomb v. State, 
    142 So. 3d 916
    , 917 (Fla. 4th DCA
    2014).
    Section 322.34(2) provides for the punishment for DWLS. In 2019, the
    Legislature amended the statute to provide for a mandatory jail term for
    any person convicted for a third or subsequent conviction for DWLS,
    effective October 1, 2019. See Ch. 2019-167, § 322.34, Laws of Fla. The
    statute provides:
    (2) Any person whose driver license or driving privilege has
    been canceled, suspended, or revoked as provided by law, . . .
    who, knowing of such cancellation, suspension, revocation, or
    suspension or revocation equivalent status, drives any motor
    vehicle upon the highways of this state while such license or
    privilege is canceled, suspended, or revoked, or while under
    suspension or revocation equivalent status, commits:
    (a) A misdemeanor of the second degree, punishable as
    provided in s. 775.082 or s. 775.083.
    (b) 1. A misdemeanor of the first degree, punishable as
    provided in s. 775.082 or s. 775.083, upon a second or
    subsequent conviction, except as provided in paragraph (c).
    2. A person convicted of a third or subsequent conviction,
    except as provided in paragraph (c), must serve a minimum of
    10 days in jail.
    2
    (c) A felony of the third degree, punishable as provided in s.
    775.082, s. 775.083, or s. 775.084, upon a third or
    subsequent conviction if the current violation of this section
    or the most recent prior violation of the section is related to
    driving while license canceled, suspended, revoked, or
    suspension or revocation equivalent status resulting from a
    violation of:
    1. Driving under the influence;
    2. Refusal to submit to a urine, breath-alcohol, or blood
    alcohol test;
    3. A traffic offense causing death or serious bodily injury; or
    4. Fleeing or eluding.
    § 322.34, Fla. Stat. (2019). Thus, a first conviction for DWLS is a second
    degree misdemeanor. A second and subsequent conviction is a first degree
    misdemeanor, although a third and subsequent DWLS conviction can be
    a felony if the violation is related to the four violations listed in section
    322.34(2)(c). Unless elevated to a felony, a person’s third or subsequent
    conviction of DWLS is still a first degree misdemeanor but carries a
    mandatory minimum ten-day jail sentence as a penalty.
    The trial court refused to apply the mandatory minimum jail sentence
    on appellee, because it believed that the amendment was an ex post facto
    law as applied to appellee.          “Both the United States and Florida
    Constitutions prohibit ex post facto laws.” Lescher v. Fla. Dep’t of Highway
    Safety & Motor Vehicles, 
    985 So. 2d 1078
    , 1081 (Fla. 2008) (citing U.S.
    Const. art. I, § 10; art. I, § 10, Fla. Const.). “The United States Supreme
    Court has defined an ex post facto law as one that (a) operates
    retrospectively, and (b) ‘make[s] innocent acts criminal, alter[s] the nature
    of the offense, or increase[s] the punishment.’” Id. (quoting Collins v.
    Youngblood, 
    497 U.S. 37
    , 46 (1990)).
    The Florida Supreme Court has recognized four categories of ex post
    facto laws as set forth by the United States Supreme Court in Calder v.
    Bull, 3 U.S. (3 Dall.) 386 (1798). Shenfeld v. State, 
    44 So. 3d 96
    , 100 (Fla.
    2010). Those four categories are as follows:
    1st. Every law that makes an action done before the passing
    of the law, and which was innocent when done, criminal; and
    3
    punishes such action. 2d. Every law that aggravates a crime,
    or makes it greater than it was, when committed. 3d. Every
    law that changes the punishment, and inflicts a greater
    punishment, than the law annexed to the crime, when
    committed. 4th. Every law that alters the legal rules of
    evidence, and receives less, or different, testimony, than the
    law required at the time of the commission of the offense, in
    order to convict the offender.
    
    Id.
     (quoting Calder, 3 U.S. (3 Dall.) at 390–91) (emphasis added). Here,
    the trial court presumably found that the enhanced penalty of ten days in
    jail for a determination under subsection (2)(b)2. for “a third or subsequent
    conviction” was ex post facto as applied to appellee’s prior convictions.
    The trial court’s application of ex post facto was erroneous.
    In Grant v. State, 
    770 So. 2d 655
     (Fla. 2000), the supreme court
    addressed the application of ex post facto to the prison releasee reoffender
    statute (“PRR”), section 775.082(8), Florida Statutes (1997). The court
    analogized the PRR to the habitual offender statute, both of which
    increased penalties for acts committed after their passage based upon
    prior convictions. 
    Id. at 661
    . The Grant court explained:
    The Act increases the penalty for a crime committed after its
    enactment, based upon release from a term of imprisonment
    resulting from a conviction which occurred prior to the Act. A
    habitual offender sentence is not an additional penalty for an
    earlier crime; rather, it is an increased penalty for the latest
    crime, which is an aggravated offense because of the
    repetition. See Gryger v. Burke, 
    334 U.S. 728
    , 732, 
    68 S. Ct. 1256
    , 
    92 L. Ed. 1683
     (1948); accord McDonald v.
    Massachusetts, 
    180 U.S. 311
    , 313, 
    21 S. Ct. 389
    , 
    45 L. Ed. 542
     (1901) (finding that a statute which imposes a
    punishment only on future crimes is not ex post facto, even
    though a conviction prior to the statute results in increased
    punishment). As the United States Supreme Court has held,
    “enhanced sentencing for recidivism does not violate ex post
    facto principles despite the fact that the prior offenses forming
    a basis for enhancement occurred prior to enactment of the
    enhancement provision.” Rollinson, 743 So. 2d at 587 (citing
    Parke v. Raley, 
    506 U.S. 20
    , 
    113 S. Ct. 517
    , 
    121 L. Ed. 2d 391
    (1992)); see also Cross v. State, 
    96 Fla. 768
    , 782, 
    119 So. 380
    ,
    385 (1928) (observing that, “[b]ut for the commission of the
    subsequent offense, the enhanced penalty would not be
    4
    imposed”); cf. Raulerson v. State, 
    609 So. 2d 1301
     (Fla. 1992)
    (rejecting ex post facto challenge to the violent habitual felony
    offender provisions of section 775.084, Florida Statutes).
    
    Id.
     at 661–62. See also Rollinson v. State, 
    743 So. 2d 585
    , 587 (Fla. 4th
    DCA 1999) (“[T]he United States Supreme Court has held that enhanced
    sentencing for recidivism does not violate ex post facto principles despite
    the fact that the prior offenses forming a basis for enhancement occurred
    prior to enactment of the enhancement provision[.]” (citing Parke v. Raley,
    
    506 U.S. 20
     (1992))).
    Based on Grant’s reasoning, the amendment to section 322.34 to add
    subsection (2)(b)2. is not ex post facto as applied to appellee. The
    amendment imposes an increased penalty on appellee for his latest DWLS
    because of recidivism. He was charged with DWLS for driving on
    December 24, 2019, after the statutory amendment went into effect. Thus,
    the statute applied a penalty to the subsequent conviction, not his prior
    convictions. Appellee does not argue otherwise. The court erred in
    rejecting the mandatory minimum sentence.
    Appellee argues, however, that because the information contained only
    one prior conviction, he was charged with section 322.34(2)(b)1., and not
    (b)2. He claims that it is a due process violation to convict him of a crime
    not charged. In support, he relies on Keels v. State, 
    792 So. 2d 1249
     (Fla.
    2d DCA 2001), where the court stated:
    A conviction on a charge not contained in the information is a
    due process violation that may be raised at any time,
    including appeal. See Fulcher v. State, 
    766 So. 2d 243
     (Fla.
    4th DCA 2000) (citing State v. Gray, 
    435 So. 2d 816
     (Fla.
    1983)). “It is fundamental error where a defendant pleads to
    one crime but is convicted of a greater crime with which he
    was never charged.”
    Id. at 1250 (quoting Cuevas v. State, 
    770 So. 2d 703
    , 704 (Fla. 4th DCA
    2000)).
    Keels is inapplicable. Here, the information charged appellee with a
    violation of section 322.34(2)(b), which is a first degree misdemeanor.
    Section 322.34(2)(b)2. simply increases the crime’s penalty but not its
    degree.
    5
    In State v. Haddix, 
    668 So. 2d 1064
     (Fla. 4th DCA 1996), we considered
    a similar issue regarding DUI convictions. The DUI statute under review
    in Haddix provided that a conviction for DUI without personal injury or
    property damage was a misdemeanor. A second or subsequent conviction
    raised the penalty, but the fourth conviction constituted a felony. The
    State charged the defendant with misdemeanor DUI but did not list any
    prior convictions. At sentencing, the State proved that defendant had a
    prior DUI conviction. Over the defendant’s objection that he had no notice
    that the State would request the higher penalty which the statute imposed
    on a second DUI conviction, the trial court concluded that the information
    did not require the listing of the prior convictions, as it was not an essential
    element of the crime.
    On a certified question from the county court, we agreed with the trial
    court that the prior convictions were not essential elements of the crime,
    because they affected only the penalty and not the degree or level of the
    crime. The prior conviction related only to sentencing, not to the crime
    itself; therefore it did not have to be alleged in the information. Id. at 1067.
    Moreover, the defendant was charged with notice of the law, and the
    statute clearly set forth the penalties for additional convictions for DUI.
    “Accordingly, we conclude that the state should not be required to allege
    prior DUI convictions in the charging document where the prior
    convictions affect only the enhanced misdemeanor penalty to be imposed
    and do not elevate the level of the crime.” Id.
    In like manner, in this case, the number of DWLS convictions did not
    change the degree or level of the crime charged, it only increased the
    penalty. Appellee was convicted of a first degree misdemeanor, the crime
    set forth in the information. Therefore, the fact that two prior convictions
    were not listed in the information did not change the crime charged. No
    fundamental error occurred, and appellee never raised the issue of a defect
    in the information in the trial court or argued to the court that he was
    prejudiced by the failure to allege both prior convictions.
    Lastly, appellee seeks to support affirmance based upon a right-for-the-
    wrong-reason argument that the statute is unconstitutional as applied to
    his circumstance. This alternative argument was not raised in the trial
    court and may not be raised for the first time on appeal. See Trushin v.
    State, 
    425 So. 2d 1126
    , 1129–30 (Fla. 1982).
    For the foregoing reasons, we reverse the sentence imposed by the trial
    court and remand for further proceedings. Because appellee’s plea was
    based upon the trial court’s promised sentence, the trial court must first
    6
    afford him the opportunity to withdraw it. Goins v. State, 
    672 So. 2d 30
    (Fla. 1996).
    Reversed and remanded for further proceedings in accordance with this
    opinion.
    CONNER, C.J., and GROSS, J., concur.
    *        *        *
    Not final until disposition of timely filed motion for rehearing.
    7