IN THE SUPREME COURT OF FLORIDA. Case No.: Lower Case No.: ID PETITIONER S JURISDICTIONAL BRIEF. On Review from the District Court

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1 IN THE SUPREME COURT OF FLORIDA PAULA GORDON, Petitioner, vs. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES Respondent. Case No.: Lower Case No.: ID PETITIONER S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, First District State of Florida EPSTEIN & ROBBINS

2 BY DAVID M. ROBBINS, ESQUIRE Fl. Bar No SUSAN Z. COHEN, ESQ. FL. Bar No.: Blackstone Building Jacksonville, Florida (904) Attorney for Petitioner TABLE OF CONTENTS Table of Citations... ii Statement of the Case and Facts... 1 Summary of the Argument... 2 Jurisdictional Statement... 3 Argument... 3 THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISIONS

3 RENDERED BY THE FOURTH DISTRICT COURT OF APPEAL IN DANIELS V. STATE, 716 SO. 2ND 827 (FLA. 4TH DCA 1998), WHIPPLE V. STATE, 789 SO. 2D 1132 (FLA. 4TH DCA 2001) AND STATE V. PRIANTI, 819 SO. 2D 231 (FLA. 4TH DCA 2002). Conclusion... 7 Certificate of Service... 7 Certificate of Compliance i-

4 TABLE OF CITATIONS CASE LAW: Cuthrell v. Director, Patuxent Institution, 475 F. 2d 1364 (4 th Cir.) cert denied, 414 U.S. 1005, 94 S.Ct., 362, 38 L.Ed. 2d 241 (1973)... 5 Daniels v. State, 716 So. 2nd 827 (Fla. 4 th DCA 1998) Department of Highway Safety and Motor Vehicles v. Grapski, 696 So. 2d 950 (Fla. 4 th DCA 1997) Major v. State, 814 So. 2d 424 (Fla. 2002) State v. Prianti, 819 So. 2d 231 (Fla. 4 th DCA 2002)... 3, 6 Whipple v. State, 789 So. 2d 1132 (Fla.4th DCA 2001)...3-4, 6 RULES: Fla.R.App.P.9.030(a)(2)(A)(iv)... 3 CONSTITUTION: Art. V Section 3(b)(3)Fla Const.(1980)

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6 STATEMENT OF THE CASE AND FACTS The Petitioner was the prevailing party in the circuit court on a Petition for Writ of Certiorari contesting the refusal of the Department of Highway Safety and Motor Vehicles to honor the terms of a plea agreement entered into between the Petitioner and the State of Florida. On August 9, 2001, the Petitioner entered a plea to the offense of driving under the influence. The plea was entered pursuant to a plea negotiation between the Petitioner and the State of Florida through an assistant state attorney. The terms of the plea agreement included the Petitioner s agreement to enter a plea of nolo contendere to a second DUI offense outside of five (5) years from the first offense. Under this agreement, the Petitioner would be subject to a six (6) month mandatory minimum revocation of her driving privilege instead of a five (5) year mandatory minimum revocation of her driving privilege for a second DUI conviction within five (5) years. As a result of the plea agreement, the trial court accepted the Petitioner s plea and adjudicated her guilty. The court sentenced the Petitioner consistent with the plea agreement, including a six (6) month driver s license revocation. On September 19, 2001, the Respondent mailed an Order of License Revocation, Suspension, or Cancellation to the Petitioner. In that order, the Petitioner was advised that effective August 9, 2001, her license was revoked for 3

7 five (5) years. The notice stated that this revocation was based upon a second conviction for DUI within a period of five (5) years in complete disregard of the plea agreement entered into between the Petitioner and the State of Florida. A petition for writ of certiorari was filed by the Respondent to the First District Court of Appeal to review the circuit court order granting the Petitioner s petition for writ of certiorari. On October 31, 2003, the district court granted the petition for writ of certiorari. The district court held that a mandatory minimum driver s license revocation is not punishment, but is an administrative function unrelated to the criminal sentence. A motion for rehearing and a motion for certification were filed on November 13, These motions were denied on December 8, The Petitioner s notice to invoke the discretionary jurisdiction of this court was timely filed on January 6, SUMMARY OF ARGUMENT In this case, the district court of appeal held that the Department of Highway Safety and Motor Vehicles was not bound by the terms of the plea agreement because the mandatory revocation of the Petitioner s driving privilege was merely an administrative remedy unrelated to the criminal sentence. The decision of the district court cannot be reconciled with the previous decisions of the Fourth 4

8 District Court of Appeal in Daniels v. State, 716 So.2nd 827 (Fla. 4 th DCA 1998), Whipple v. State, 789 So.2d 1132 (Fla.4th DCA 2001) and State v. Prianti, 819 So.2d 231 (Fla. 4 th DCA 2002) wherein the Fourth District Court of Appeal found that a driver s license revocation is a penalty and a direct consequence of a criminal plea. Thus, the Petitioner contends that the decision of the First District Court of Appeal in this case expressly and directly conflicts with the previous decisions of the Fourth District Court of Appeal. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the supreme court or another district court of appeal on the same point of law. Art. V Section 3(b)(3)Fla Const.(1980); Fla.R.App.P.9.030(a)(2)(A)(iv). ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISIONS RENDERED BY THE FOURTH DISTRICT COURT OF APPEAL IN DANIELS V. STATE, 716 SO.2ND 827 (FLA. 4TH DCA 1998), WHIPPLE V. STATE, 789 SO.2D 1132 (FLA. 4TH DCA 2001) AND STATE V. PRIANTI, 819 SO.2D 231 (FLA. 4TH DCA 2002). In the case at bar, the First District Court of Appeal found that a mandatory 5

9 minimum driver s license revocation is not punishment, but is an administrative function unrelated to the criminal sentence. Therefore, the court reasoned, the five (5) year revocation of the Petitioner s driving privilege could be invoked notwithstanding the plea agreement which specifically and expressly provided that the Petitioner was entering a plea to a second DUI outside of five (5) years and that the Petitioner would therefore only be subject to a six (6) month mandatory revocation of her driving privilege. In reaching this conclusion, the district court found that the imposition of the driver s license revocation was completely separate and distinct from the criminal disposition of the Petitioner s case. In its analysis, the First District Court cites to Department of Highway Safety and Motor Vehicles v. Grapski, 696 So.2d 950 (Fla. 4 th DCA 1997) in finding that the administrative suspension of the Respondent s driver s license is not punishment. The First District Court s reliance on Grapski, however, was misplaced in light of the subsequent decisions of the Fourth District Court of Appeal as to this issue as well as this Court s decision in Major v. State, 814 So.2d 424 (Fla. 2002) in which this Court cited with approval the reasoning employed by the Fourth District Court of Appeal in Daniels v. State, 716 So.2d 827 (Fla. 4 th DCA 1998). In both Daniels and Whipple v. State, 789 So.2d 1132 (Fla. 4th DCA 2001), 6

10 the Fourth District Court of Appeal found that a driver s license revocation is a direct consequence of a plea and a penalty that is imposed as a result of the plea. In reaching that decision, the Fourth District Court of Appeal relied on the definitions of direct and collateral consequences contained in Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4 th Cir.) cert denied, 414 U.S. 1005, 94 S.Ct., 362, 38 L.Ed. 2d 241 (1973). As noted by the Fourth District Court of Appeal in Daniels, the court in Cuthrell stated, 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. (emphasis added). Cuthrell at 1366 This Court adopted the reasoning in Daniels and Cuthrell in Major, supra, quoting the above passage. Furthermore, the Fourth District Court of Appeal in Daniels explains the distinction between the finding in Grapski and its finding in Daniels. In Grapski, the issue was the authority of trial court to change the terms of a driver s license suspension. In Daniels, however, as in the case at bar, the issue raised has nothing to do with the power of the court. The issue in Daniels, however related directly to the entry of the plea and whether it was voluntary. Similarly, in the case at bar, the issue is not the power of the trial court to change the terms of a driver s license 7

11 suspension, but the fact that the State of Florida entered into a plea agreement with the Petitioner which included only a six (6) month revocation of her driver s license. The Fourth District Court of Appeal again found that a driver s license revocation was a direct consequence of a plea in Prianti v. State, 819 So.2d 231 (Fla. 4 th DCA 2002). In Prianti, the defendant was advised at the time of sentencing that his driver s license would be revoked for six (6) months. Subsequent to that conviction, as in the case at bar, the Department notified the defendant that, based upon that conviction, his driver s license was suspended for a period of time greater than six (6) months. The Fourth District Court of Appeal held, 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 Id. Accordingly, the First District Court of Appeal s finding that a driver s license revocation is an administrative action unrelated to the imposition of a criminal sentence conflicts with the decisions rendered in Daniels, Whipple, and Prianti, 8

12 CONCLUSION This Court has discretionary jurisdiction to review the decision below, and the court should exercise that jurisdiction to consider the merits of the petitioner s argument. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been furnished to The Honorable Charles Mitchell, Duval County Courthouse, Jacksonville, Florida by hand delivery and Judson M. Chapman, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses, Neil Kirkman Building, Tallahassee, Florida 3230l, by mail, this the 14 th day of January CERTIFICATE OF FONT AND TYPE SIZE Counsel certifies that this brief was typed in Times New Roman 14. Respectfully submitted, EPSTEIN & ROBBINS BY: DAVID M. ROBBINS, ESQ., # SUSAN Z. COHEN, ESQ., # Blackstone Building Jacksonville, Florida

13 Attorney for Petitioner 10