IN THE SUPREME COURT OF FLORIDA. v. Case No. SC ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

Transcription

1 IN THE SUPREME COURT OF FLORIDA BARRY SULLENS, Petitioner, v. Case No. SC STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL PETITIONER S INITIAL BRIEF ON THE MERITS WHITED, FULLER, MILLER & FOXMAN FLEM K. WHITED, III, ESQUIRE Florida Bar No DAVID H. FOXMAN, ESQUIRE Florida Bar No N. Wild Olive Ave., Suite A Daytona Beach, FL (386) (telephone) (386) (fax) COUNSEL FOR PETITIONER 1

2 TABLE OF CONTENTS TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT ARGUMENT PETITIONER WAS ENTITLED TO WITHDRAW HIS PLEA WHERE HE WAS NOT ADVISED HE WOULD RECEIVE A PERMANENT LICENSE REVOCATION AS A RESULT OF HIS PLEA. CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

3 TABLE OF CITATIONS CASES CITED: A.D.W. v. State, 777 So. 2d 1101 (Fla. 2d DCA 2001) Akbar v. State, 570 So. 2d 1047 (Fla. 1st DCA 1990) Ashley v. State, 614 So. 2d 486 (Fla. 1993) ,7 City of Hollywood v. Petrosino, 864 So. 2d 1175 (Fla. 4th DCA 2004).. 4 Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir.), cert. denied, 414 U.S (1973) Daniels v. State, 716 So.2d 827 (Fla. 4th DCA 1998)... passim Department of Highway Safety and Motor Vehicles v. Degrossi, 680 So. 2d 1093 (Fla. 3d DCA 1996) Department of Highway Safety and Motor Vehicles v. Stewart, 625 So. 2d 123 (Fla. 5th DCA 1993) Freeman v. State, 382 So. 2d 1307 (Fla. 3d DCA 1980), rev. denied, 401 So. 2d 1334 (Fla. 1981) Hernandez-Molina v. State, 860 So. 2d 483 (Fla. 4th DCA 2003).. 13 Ingraham v. State, 502 So. 2d 987 (Fla. 3d DCA 1987) King v. State, 30 Fla. L. Weekly D2297 (Fla. 2d DCA Sept. 28, 2005).. 15 Loeb v. State, 387 So. 2d 433 (Fla. 3d DCA 1980) Major v. State, 814 So. 2d 424 (Fla. 2002) ,10, 12,14,16 Nettles v. State, 850 So. 2d 487 (Fla. 2003) Nordelus v. State, 889 So. 2d 910 (Fla. 4th DCA 2004)....10,11 3

4 Perry v. State, 900 So. 2d 755 (Fla. 4th DCA 2005) Prianti v. State, 819 So. 2d 231 (Fla. 4th DCA 2002).. 3,8,9,11,19,20 Ready v. State, 657 So. 2d 53 (Fla. 2d DCA 1995) Smith v. City of Gainesville, 93 So. 2d 105 (Fla. 1957)... 11,12,14, 16,17 State v. Atkinson, 755 So. 2d 842 (Fla. 5th DCA 2000) State v. Bolware, 28 Fla. Law Weekly D2493 (Fla. 1st DCA Oct. 31, 2003), rev. pending, Case No. SC04-12 (Fla.) ,9,10 11,19,20 State v. Caswell, 28 Fla. L. Weekly D2492 (Fla. 1st DCA Oct. 31, 2003), rev. pending, Case No. SC ,10, 11,19,20 State v. Fox, 659 So. 2d 1324 (Fla. 3d DCA 1995), rev. den., 668 So. 2d 602 (Fla. 1996) State v. Ginebra, 511 So. 2d 960 (Fla. 1987) State v. Partlow, 840 So. 2d 1040 (Fla. 2003) Sullens v. State, 889 So. 2d 912 (Fla. 5th DCA 2004)... 2,11,20 Vichich v. Department of Highway Safety and Motor Vehicles, 799 So. 2d 1069 (Fla. 2d DCA 2001) Watrous v. State, 793 So. 2d 6 (Fla. 2d DCA 2001) ,19 Whipple v. State, 789 So. 2d 1132 (Fla. 4th DCA 2001), disapproved on other grounds, Stoletz v. State, 875 So. 2d 572 (Fla. 2004)... 3,8,9,11,19,20 Zambuto v. State, 413 So. 2d 461 (Fla. 4th DCA 1982)

5 OTHER AUTHORITIES CITED: Florida Rule of Criminal Procedure 3.170(k) Florida Rule of Criminal Procedure 3.170(l) Florida Rule of Criminal Procedure 3.172(c)(1) ,7 Section (2)(b), Florida Statutes (1999) Section (1), Florida Statutes (1997) ,8 Section , Florida Statutes (2003) ,18 Section (1), Florida Statutes (2003) ,18 Section (16), Florida Statutes (2005) Section , Florida Statutes (2003) ,19 Section (2)(a), Florida Statutes (2003) Section (2)(e), Florida Statutes (1999) Section (3)(a)6, Florida Statutes (2004) Section (3)(c)5, Florida Statutes (2004)

6 STATEMENT OF THE CASE AND FACTS Petitioner, Barry Sullens, was charged by information with felony driving under the influence, fourth offense. 1 (R.6,14,15). The State s initial plea offer provided that if Petitioner pled as charged, he would receive, among other things, a permanent driver s license revocation. (R.18). On October 11, 2001, he pled no contest to the reduced charge of misdemeanor DUI, third offense. (R.64-71). The terms of the plea agreement, both as written and as read in open court, included a ten-year driver s license revocation. (R.40,64). The trial court accepted the plea and sentenced Petitioner in accordance with the plea agreement. (R.70). On October 10, 2003, Petitioner filed a motion for postconviction relief in the trial court, seeking to withdraw his plea. (R.73-96). He alleged that as a direct result of his plea, the Department of Highway Safety and Motor Vehicles (the Department) revoked his license permanently, rather than for just ten years. (R.74). Petitioner attached a copy of the Department s order of license revocation. (R.84). He alleged that he was not informed of this consequence prior to entering the plea. (R.74-75). He further alleged that counsel affirmatively misadvised him of the length of the revocation. (R.74). On January 14, 2004, a hearing was held before the circuit court to discuss the case law on the issue. (R ). The State s position was that a license (2)(b), Fla. Stat. (1999). 6

7 revocation is not a criminal punishment, but rather an administrative remedy, and the trial court was not required to inform Petitioner of the potential for permanent revocation because it was a collateral consequence of the plea. (R ,131). The defense advised the trial court that there was conflict between the Fourth District Court of Appeal and the First District Court of Appeal regarding whether this was a direct consequence of the plea, but that the Fifth District Court of Appeal had not yet weighed in on the issue. (R , ). The trial court took the matter under advisement and, on February 6, 2004, rendered a written order denying Petitioner s motion for postconviction relief. (R ). The trial court held that license revocation was not a punishment and therefore could not be deemed a direct consequence of the plea. (R ). Petitioner appealed to the Fifth District Court of Appeal. (R ). On December 10, 2004, the district court affirmed the circuit court s order. Sullens v. State, 889 So. 2d 912 (Fla. 5th DCA 2004). The district court certified conflict with Daniels v. State, 716 So. 2d 827 (Fla. 4th DCA 1998). Petitioner timely filed a notice to invoke this Court s discretionary jurisdiction. 7

8 SUMMARY OF ARGUMENT The district court erred in affirming the denial of Petitioner s motion for postconviction relief. The mandatory permanent driver s license revocation imposed on Petitioner as a result of his conviction for driving under the influence was a direct consequence of the plea, as it had a definite, immediate, and largely automatic effect on the range of punishment. Because Petitioner was not informed of this consequence, he was entitled to withdraw his plea. This Court should quash the decision below and approve Daniels v. State, 716 So.2d 827 (Fla. 4th DCA 1998), Whipple v. State, 789 So. 2d 1132 (Fla. 4th DCA 2001), and Prianti v. State, 819 So. 2d 231 (Fla. 4th DCA 2002). 8

9 ARGUMENT PETITIONER WAS ENTITLED TO WITHDRAW HIS PLEA WHERE HE WAS NOT ADVISED HE WOULD RECEIVE A PERMANENT LICENSE REVOCATION AS A RESULT OF HIS PLEA. The issue in this case is whether Petitioner s plea was unknowing and involuntary because he was not informed that his driver s license would be permanently revoked as a result of the plea. Review of this purely legal question is de novo. See City of Hollywood v. Petrosino, 864 So. 2d 1175, 1177 (Fla. 4th DCA 2004)( The standard of review is de novo because there are no disputed facts and the trial court s conclusions were purely legal ). The record shows that the State s initial plea offer included a lifetime license revocation. However, the State amended its offer to limit the revocation to ten years. (R.40). The written plea agreement states that Petitioner would be sentenced only upon the [specified] terms and conditions[.] (R.40). At the plea and sentencing hearing, defense counsel repeated the terms of the amended offer, including the ten-year revocation. (R.64). The possibility that the Department of Highway Safety and Motor Vehicles (the Department) would automatically impose a lengthier revocation upon receiving record of the conviction was not discussed at the hearing. (R.64-71). At the conclusion of the hearing, the trial court imposed the agreed-upon sentence, including the ten-year license revocation. (R.70). 9

10 However, because of the conviction, the Department revoked Petitioner s license permanently. (R.84). See (2)(e), Fla. Stat. (1999)(requiring court to permanently revoke the driver s license of one who has been convicted of driving under the influence four times). Petitioner moved for postconviction relief, alleging that he was not informed of this consequence of the plea by either the trial court or defense counsel. (R.74-75). The trial court denied the motion on the ground that a license revocation imposed as a consequence of a DUI conviction is not a criminal punishment and therefore not a direct consequence of the plea. (R ). The district court of appeal affirmed the trial court s ruling on the authority of State v. Bolware, 28 Florida Law Weekly D2493 (Fla. 1st DCA Oct. 31, 2003), rev. pending, Case No. SC04-12 (Fla.). In order to be valid, a defendant s plea must be knowing, intelligent, and voluntary. A.D.W. v. State, 777 So. 2d 1101, 1104 (Fla. 2d DCA 2001); Ingraham v. State, 502 So. 2d 987 (Fla. 3d DCA 1987); Perry v. State, 900 So. 2d 755 (Fla. 4th DCA 2005). The defendant must understand the reasonable consequences of the plea. Major v. State, 814 So. 2d 424, 429 (Fla. 2002)(quoting Daniels v. State, 716 So. 2d 827, 828 (Fla. 4th DCA 1998)). It is incumbent upon both defense counsel and the trial court to make the defendant aware of the direct consequences of the plea, although no such duty exists for collateral consequences. See Watrous v. State, 793 So. 2d 6, 8 (Fla. 2d DCA 2001). A direct consequence is one which 10

11 has a definite, immediate, and largely automatic effect on the range of the defendant s punishment. Major, 814 So. 2d at 431 (quoting Zambuto v. State, 413 So. 2d 461, 462 (Fla. 4th DCA 1982)). There is a conflict between the district courts on the question of whether a mandatory driver s license revocation is a direct consequence of the plea, such that the trial court and defense counsel have an obligation to inform the defendant of the revocation before the plea. In Daniels, 716 So. 2d 827, Daniels pled nolo contendere to various drug charges, but was never apprised that the trial court was required to direct the Department to revoke his driving privilege upon conviction. Id. at 828. At sentencing, the court ordered revocation as it was required by statute to do. Id. Daniels moved to withdraw his plea, alleging that he was never informed that he would lose his license until the sentencing hearing. Id. Following the trial court s denial of relief, Daniels appealed to the Fourth District Court of Appeal, which reversed: Florida Rule of Criminal Procedure 3.170(k) requires the trial court to determine that a defendant's plea is voluntary. One aspect of a voluntary plea is that the defendant understand the reasonable consequences of his plea, including the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law. Fla.R.Crim.P (c)(1); Ashley v. State, 614 So. 2d 486, 488 (Fla. 1993). However, a trial court is required to inform a defendant only of the direct consequences of the plea, and is under no duty to advise the defendant of any collateral consequences. See State v. Ginebra, 511 So. 2d 960,

12 (Fla. 1987); State v. Fox, 659 So. 2d 1324, 1327 (Fla. 3d DCA 1995), rev. den., Fox v. State, 668 So. 2d 602 (Fla. 1996). In Zambuto v. State, 413 So. 2d 461, 462 (Fla. 4th DCA 1982), this court adopted the fourth circuit s definition of a direct consequence of a plea: The distinction between direct and collateral consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment. Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.) cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973). Daniels, 716 So. 2d at Applying this framework to the context of Daniels license revocation, the Daniels court held that such a revocation is a direct consequence of the plea: In this case, the two year license revocation mandated by section (1) was definite, immediate, and automatic upon Daniels conviction. The revocation was a consequence of the plea under Ashley and a penalty contemplated by Rule 3.172(c)(1). Daniels did not waive his right to raise the issue, having filed his motion to withdraw the plea within 30 days of the rendition of the sentence under Rule 3.170(l). The transcript of the sentencing hearing supports his claim that imposition of the suspension surprised him. The defendant was placed on probation, not sentenced to a lengthy term of imprisonment, so the effect of the license suspension upon him was not minimal. For these reasons, prior to accepting the plea, the trial court was 2 In Major, this Court favorably quoted this passage, and adopted the Cuthrell definition of a direct consequence. Major, 814 So. 2d at 429,

13 required to determine that the defendant understood that he was subject to the section (1) suspension. Daniels, 716 So. 2d at 829. In Whipple v. State, 789 So. 2d 1132 (Fla. 4th DCA 2001), disapproved on other grounds, Stoletz v. State, 875 So. 2d 572 (Fla. 2004), the district court went a step further. Unlike Daniels, Whipple was informed that his license would be revoked as a result of his plea. Whipple, 789 So. 2d at , However, his attorney assured him that the maximum term of the revocation would be five or ten years. Id., at He was not warned that his license could be revoked permanently. Id., at 1135, The trial court, in imposing sentence, revoked Whipple s license permanently. Id., at Whipple appealed from the denial of his motion to withdraw plea. Relying on Daniels, the district court reversed: Clearly, the revocation of appellant s license was a direct consequence of his plea. Although he was informed that there would be a license revocation, and that there was no guarantee as to what his sentence would be, he was misadvised or uninformed that a lifetime suspension was a possible consequence. Whipple, 789 So. 2d at In Prianti v. State, 819 So. 2d 231 (Fla. 4th DCA 2002), Prianti appealed from the summary denial of his motion for postconviction relief. He argued that his DUI plea was not voluntary because he was led to believe that his license 13

14 would be revoked for only one year. Id., at 232. He subsequently learned that the Department had permanently revoked his license as a result of the plea. Id. Relying on Daniels and Whipple, the court reversed for an evidentiary hearing. Id. For a plea to be voluntary, the defendant must be fully advised of the direct consequences of the plea. Daniels v. State, 716 So. 2d 827, 828 (Fla. 4th DCA 1998). We have held that a mandatory two year revocation of a driver s license under section (1) is a direct consequence. Whipple v. State, 789 So. 2d 1132 (Fla. 4th DCA 2001); Daniels, 716 So. 2d at 828. Prianti, 819 So. 2d at 232. The First District Court of Appeal took a different view of the issue in the twin opinions of State v. Caswell, 28 Fla. L. Weekly D2492 (Fla. 1st DCA Oct. 31, 2003), and State v. Bolware, supra. Caswell sought postconviction relief from her DUI conviction on the ground that her attorney failed to warn her that she could lose her license permanently if she was convicted. The county court granted Caswell s motion and the circuit court affirmed, ruling that the revocation was a direct consequence of the plea. Bolware featured a similar scenario, except there the defendant was convicted of driving while license suspended or revoked, and received only a five-year revocation. In both cases, Judge Barfield, writing for the court, held that an automatic revocation is not a criminal punishment, but rather an administrative remedy for public protection which automatically flows from the conviction. Having 14

15 determined that the revocation was not a punishment, Judge Barfield concluded that it was not a direct consequence of the plea and therefore counsel did not have to inform the defendant of the potential for revocation prior to the plea. Judge Ervin wrote a concurring opinion in both cases, agreeing that revocation was not a direct consequence of the plea. He stated that he would certify conflict with Daniels and the other Fourth District cases. Judge Allen dissented, stating that the trial court had correctly followed the Fourth District cases which were the only cases directly on point. He observed that this Court in Major had favorably quoted from Daniels at length and had determined that Daniels contained a correct recitation of the test to be applied in determining whether a consequence of the plea is direct or collateral. Judge Allen further noted that every appellate court in the state had cited Daniels without criticism. Bolware and Caswell are now pending in this Court, which at the time of this writing has not yet ruled on whether it will grant review. Bolware v. State, Case No. SC04-12; Caswell v. State, Case No. SC In Nordelus v. State, 889 So. 2d 910 (Fla. 4th DCA 2004), the Fourth District continued to adhere to Daniels. There, the defendant pled to DUI manslaughter, but was not informed that his license would be revoked as a result of the conviction. Because the revocation was mandatory under the relevant statute, the court held that this was a direct consequence of the plea under Major because it 15

16 was definite, immediate, and largely automatic. The court certified conflict with Caswell and Bolware. Nordelus is currently pending before this Court in Case Number SC Finally, in Sullens v. State, 889 So. 2d 912 (Fla. 5th DCA 2004), the Fifth District aligned itself with the First District, affirming the denial of Petitioner s motion for postconviction relief on the authority of Bolware. The court acknowledged that Bolware was in conflict with Daniels. Accordingly, the Fifth District certified conflict with Daniels. 3 This Court should approve Daniels, Whipple, and Prianti. The decisions in Bolware and Caswell, and by extension Sullens, are largely based on Smith v. City of Gainesville, 93 So. 2d 105 (Fla. 1957), in which this Court held that a mandatory license revocation following a DUI conviction was not a punishment. However, the issues considered in Smith are quite different from the issues in this case. In Smith, the defendant argued that the mandatory revocation provision was a bill of attainder, a double punishment, and a separation of powers violation. Thus, the Court was able to uphold the provision on the theory that the revocation was not truly a punishment. 4 3 Arguably, Sullens can also be read to certify conflict with Prianti. 4 Despite its official pronouncement that the revocation was not a punishment, Smith acknowledged that the revocation served as a form of retribution for the offense of drunk driving: It would appear to us to be utterly absurd to hold that a 16

17 Here, the question is whether the revocation is a direct consequence of the plea, a considerably different issue than was present in Smith. While the definition of a direct consequence includes the term range of defendant's punishment, Major, 814 So. 2d at 431, the focus in the direct consequence analysis is on ensuring that a criminal defendant enters into a plea agreement with an understanding of the reasonable consequences. See Id., 814 So. 2d at 429 (quoting Daniels, 716 So. 2d at 828). The analysis in Smith is inapposite to this determination. Unlike the defendant in Smith, Petitioner is not challenging the authority of the sentencing judge to impose a license revocation. That authority is well-settled. What Petitioner seeks is notice that the plea will result in a revocation of a definite length. Furthermore, it is doubtful that the Smith Court s discussion of punishment remains viable in Florida s modern sentencing scheme. Smith concluded that a mandatory license revocation was not a punishment but rather was merely an administrative remedy because 1) its primary purpose was to protect the public, and 2) the trial court had no discretion but to impose the revocation. Id., 93 So. 2d at Regarding this first ground, protection of the public is a purpose of man should be allowed to fill his automobile tank with gasoline and his personal tank with alcohol and weave his merry way over the public highways without fear of retribution should disaster ensue, as it so often does. Smith, 93 So. 2d at 106. Thus, it was at least implicitly acknowledged that there is a punitive aspect to a license revocation imposed as a result of a conviction. 17

18 many criminal sentencing laws. See e.g. Nettles v. State, 850 So. 2d 487, 493 (Fla. 2003)(one legislative purpose underlying prison releasee reoffender act was to protect public); Akbar v. State, 570 So. 2d 1047 (Fla. 1st DCA 1990)(protection of the public is the underlying purpose of habitual offender sentencing statute); Hernandez-Molina v. State, 860 So. 2d 483 (Fla. 4th DCA 2003)(upholding three strikes law against single subject challenge, because all provisions related to enhanced criminal punishments for the protection of the public). In fact, protection of the public is a built-in consideration in Florida s habitual offender and violent career criminal scheme, in which the trial court s determination of whether to impose a habitual offender sentence on a qualified defendant turns on whether such a sentence is necessary for public protection (3)(a)6 & (3)(c)5, Fla. Stat. (2004). Under the sentencing guidelines, the need to protect the public was a ground for an upward departure. Ready v. State, 657 So. 2d 53 (Fla. 2d DCA 1995). Because protection of the public is a pervasive factor throughout Florida s sentencing scheme, the mere fact that public protection is the primary purpose of a mandatory revocation does not mean it is not a punishment. One would not argue, for instance, that a prison sentence imposed under the habitual offender law was not a punishment merely because it was designed to protect the public. Regarding the second ground (judge s lack of discretion), a lack of judicial discretion has unfortunately become a hallmark of Florida s sentencing scheme. 18

19 From the Prison Releasee Reoffender Act, to Life, to three strikes, to the various minimum mandatory sentences for narcotics and weapons-related offenses, Florida sentencing law features numerous instances in which the sentencing judge s discretion has been largely, if not completely, eliminated. But this does not mean that the sanctions the sentencing judge is required to impose are something other than a punishment. One would not argue, for instance, that a mandatory prison sentence imposed under the Prison Releasee Reoffender Act was not a punishment merely because it the sentencing judge had no discretion in imposing it. Applying the Major definition, a license revocation is a direct consequence of the plea. It is definite, immediate, and automatic. To suggest that it is not a direct consequence because there is case law from another context declaring revocation to be something other than a punishment is a semantic shell game. If this argument were taken to its logical extreme, then a term of probation would not be considered a direct consequence of the plea because there is case law -- most of it, like Smith, from other contexts and arguably outdated -- which holds that probation is not a sentence. See e.g. Loeb v. State, 387 So. 2d 433, 436 (Fla. 3d DCA 1980)( An order granting probation is not a sentence; it is the grace of the state, in lieu of a sentence, granted in hopeful anticipation of a defendant s rehabilitation ); Freeman v. State, 382 So. 2d 1307, 1308 (Fla. 3d DCA 19

20 1980)(there is a clear distinction between a sentence and a condition of probation), rev. denied, 401 So. 2d 1334 (Fla. 1981). In an analogous case, the Second District recently held that it would no longer treat a sexual offender designation as a civil order, separate from the rest of the defendant s sentence. King v. State, 30 Fla. L. Weekly D2297 (Fla. 2d DCA Sept. 28, 2005)(en banc). Treating the designation as a civil matter resulted in confusion as to the appropriate means to challenge the designation when erroneously imposed. Id. This same type of confusion exists with regard to a license revocation imposed following a conviction. Because courts have decided to label the revocation a civil sanction, it is considered to be unrelated to the appeal of the defendant s sentence. Department of Highway Safety and Motor Vehicles v. Degrossi, 680 So. 2d 1093, (Fla. 3d DCA 1996)( Because driving is a privilege, it follows that revocation of that privilege does not constitute punishment... Since mandatory suspension is not a criminal penalty, but instead a civil sanction unrelated to an appeal of the criminal conviction, the trial court does not have jurisdiction to enter a stay. ). In Vichich v. Department of Highway Safety and Motor Vehicles, 799 So. 2d 1069 (Fla. 2d DCA 2001), the court discussed the confusion surrounding the proper vehicle for challenging a license suspension imposed by the Department. It is time to cast aside the civil label attached to a mandatory statutory license revocation and acknowledge that such a 20

21 revocation, when imposed as a result of a criminal conviction, is a criminal punishment which is part of the defendant s sentence. Because Petitioner s revocation is for a much longer period of time than his term of incarceration, this is not a de minimus penalty. See Daniels, 716 So. 2d at 829 (effect of license suspension was not minimal, where defendant was sentenced to probation rather than a lengthy term of incarceration). Surely, common experience has shown that for most people, the ability to drive is absolutely essential, whether it be for work or family purposes. This is especially true in a large, geographically diverse state, such as Florida. For most people, losing the privilege to drive for a significant period of time will have serious adverse consequences, potentially costing them their jobs and burdening their families. A defendant must have notice of this consequence if the plea is to be considered knowing and voluntary. In light of this court s opinion in Major, the First District s reliance on Smith is misplaced. Now that Major has given us a definitive definition of a direct consequence, it makes no sense for Florida courts to blindly advert to a fifty-yearold opinion that was decided in a different context. This issue is controlled by Major, not Smith. Major adopted a less restrictive definition of direct consequences[.] Major, 814 So. 2d at 431 ( The distinction between direct and collateral consequences of a plea, while sometimes shaded in the relevant 21

22 decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant s punishment. ). As noted above, a license revocation imposed by the trial court as a result of a conviction has a direct, immediate, and largely automatic effect on the defendant s range of punishment, making it a direct consequence of the plea under Major. The focus of the Major test is whether the defendant was aware of the direct consequences of the plea. See State v. Partlow, 840 So. 2d 1040, (Fla. 2003). Here, it appears from the plea agreement and the trial court s pronouncement of sentence that all parties to the plea -- judge, prosecution, and defense -- were under a false impression regarding the length of the revocation Petitioner would suffer. (R.40,94). In evaluating whether a license revocation is a direct consequence of the plea for purposes, it is significant to compare the two types of license deprivations which are imposed on DUI defendants under the Florida statutory scheme. First, there is an administrative license suspension imposed by the arresting officer on behalf of the Department of Highway Safety and Motor Vehicles, following the defendant s arrest for DUI. See (1), Fla. Stat. (2003). See e.g. State v. Atkinson, 755 So. 2d 842 (Fla. 5th DCA 2000). A license suspension is purely administrative. It is independent of any criminal prosecution. The suspension takes effect upon arrest. The resolution of the criminal case is 22

23 irrelevant to the suspension, except under one circumstance. 5 Review is by administrative hearing before the Department of Highway Safety and Motor Vehicles, where the burden of proof is merely a preponderance of the evidence. See e.g. Department of Highway Safety and Motor Vehicles v. Stewart, 625 So. 2d 123 (Fla. 5th DCA 1993). In contrast, a revocation under Section , as was imposed on Petitioner, is an inextricable part of the criminal prosecution. It is triggered by a conviction and must be imposed by the judge at sentencing (2)(a), Fla. Stat. (2003)( 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 ). Obviously, no such revocation is imposed if the charge is dismissed or amended (e.g., to reckless driving), or if the defendant is acquitted (regardless of whether the case is prosecuted under a refusal or unlawful blood alcohol theory). The revocation is a bargaining chip in plea negotiations for a lesser offense. When compared to the purely administrative suspension authorized by Section , it is plain that a revocation is a criminal punishment. Any administrative or civil needs are served by the suspension; the revocation is designed to punish the defendant for having been convicted in 5 Earlier this year, the legislature created a new statutory provision that if a person was acquitted at trial in a DUI prosecution involving an unlawful blood alcohol concentration (as opposed to a refusal of an alcohol test), the administrative suspension will be set aside (16), Fla. Stat. (2005). 23

24 a court of law. Accordingly, Petitioner s permanent revocation under Section was a direct consequence of the plea and the failure to advise Petitioner of this direct consequence entitles Petitioner to withdraw the plea. Finally, although Petitioner s motion for postconviction relief was denied as a matter of law on the ground that the license revocation was not a direct consequence of the plea, Petitioner also alleged affirmative misadvice of counsel regarding the length of the revocation. (R.74). Affirmative misadvice can be a ground for withdrawing the plea, even if it pertains to a collateral (not direct) consequence. See Watrous, 793 So. 2d at 11. The First District appeared to suggest that this was a distinguishing factor between its opinions in Bolware and Caswell, on the one hand, and the Fourth District s opinions in Prianti and Whipple, on the other. See Bolware, 28 Fla. L. Weekly at D2494 n.2; Caswell, 28 Fla. L. Weekly D2492 n.2. Thus, even if this Court agrees with the First District that the license revocation is a collateral consequence, it should direct the District Court to remand the case to the circuit court so that Petitioner may have the opportunity to present evidence on his allegation of material misadvice. 24

25 CONCLUSION WHEREFORE, based on the foregoing argument and authority, Petitioner respectfully requests that this Honorable Court quash the decision of the Fifth District Court of Appeal in Sullens; disapprove Caswell and Bolware; and approve Daniels, Prianti, and Whipple. In the alternative, Petitioner requests that the Court direct the District Court of Appeal to remand to the circuit court with directions to allow Petitioner to present evidence on his allegation of material misadvice of counsel. RESPECTFULLY SUBMITTED, WHITED, FULLER, MILLER & FOXMAN FLEM K. WHITED, III, ESQUIRE Florida Bar No DAVID H. FOXMAN, ESQUIRE Florida Bar No N. Wild Olive Ave., Ste. A Daytona Beach, FL (386) (telephone) (386) (fax) COUNSEL FOR PETITIONER 25

26 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to the Office of the Attorney General, 444 Seabreeze Blvd., Ste. 500, Daytona Beach, FL 32118, this 18th day of October, COUNSEL FOR PETITIONER CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the font used in the pleading is 14-point Times New Roman. COUNSEL FOR PETITIONER 26