Court Admits Mistakes on Driving While License Suspended as an HTO

We’re going to examine what constitutes a particularly serious version of driving on a suspended license (DWLS), and that’s driving as a habitual traffic offender (HTO). The punishment on these cases can be a bit harsh, meaning you can go to jail or prison. (sorry for all the acronyms)

There are two surprising things about driving on a suspended license as an HTO: first, how serious the punishment is, and second, how easy it is to prove this type of case.

Today, we’re going to meet a driver who received a 365-day jail sentence after being convicted of driving on a suspended license as a habitual traffic offender. Robinson v. State, 2020 Fla.App.Lexis 621 (Fla. 2d DCA 2020). FYI, in Orange County, Osceola County, and Seminole County, some judges are giving out prison time for this offense–but Robinson got his one year jail sentence in another county.

Henry Robinson was caught driving while his license was suspended as a Habitual Traffic Offender (HTO). For those of you unfamiliar with what it means to be a habitual traffic offender, basically, it is a five-year license suspended that spawns from 3 convictions for various driver shinanigans (most frequently, just getting caught driving on a suspended license three times will create a 5 year DL suspension as a habitual traffic offender).

Its a pretty serious offense to be caught driving on an HTO suspension–its a third-degree felony punishable by up to 5 years in prison. Technically, there are several different ways to end up with a felony for driving on a suspended license. Robinson found the most direct route to a felony via driving as a habitual traffic offender, but you can also be charged with a felony for driving on a suspended license with two prior convictions.

One of the problems with an HTO suspension is that this suspension is a surprise to almost every driver who gets one. Sure, the DMV is required to give a driver notice that the suspension is coming, but the DMV does not have a perfect track record when it comes to mailing things out. And that’s the complaint that Robinson had with his conviction–the State failed to prove that the DMV noticed him of his 5-year HTO suspension. As such, he asked that his conviction be overturned.

Let’s start with the basics. Robinson is having to spend a year of his life behind bars for driving on a suspended license as a habitual traffic offender. He violated Florida Statute 322.34(5), which states that:

Any person whose driver license has been revoked pursuant to s. 322.264 (habitual offender statute) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree.

At trial, Robinson was concerned that the prosecutor failed to prove that he ever received notice that his license was suspended as a habitual traffic offender. And Robinson’s attorney had good reason to ask for this proof because several cases in Florida have ruled that to prove this felony offense, “the State is required to prove three elements:

(1) DMV had revoked defendant’s driver’s license as a habitual offender under section 322.264; (2) DMV gave notice of the revocation of his license; and (3) defendant operated a motor vehicle upon a highway of Florida while the license was revoked.” Rodgers v. State, 804 So. 2d 480, 482 (Fla. 4th DCA 2001). emphasis added.

If you read what the Rodgers court says the state must prove, do you notice requirement number (2)? It states that the state must prove that the “DMV gave notice of the revocation”. However, when you read the statute Robinson violated, Florida Statute 322.34(5), does it mention anything about “notice”?

No.

Still, that didn’t stop the Rodgers court, above, from claiming that “notice” is the second element the prosecutor must prove to convict under this statute.

That being said, the appeals court in Robinson admitted that they have made a mistake.

There once was a team that won the biggest prize their sport offered. When the team started practice the next season, their coach, Vince Lombardi, huddled all of his star atheletes at the 50 yard line and held a football in his hand explaining, rather seriously “Gentleman, this is football.” He then took the team to the endzone, and explained how to score a touchdown. A few of these atheletes, all of whom were at the top of their game, felt their time was being wasted by starting at the beginning. But today, almost every NFL team starts each season reminding their players of the very basics of the game.

And that’s what the Robinson court did here. They went back to the basics of Criminal Law 101. They started with a reading of the crime itself, Florida Statute 322.34(5).

What does the statute say? Well, the plain language of the statute does not mention that Robinson need be given notice of his habitual offender status.

The court in Robinson was perplexed as to how a notice requirement appeared out of thin air, without any support from the statute itself. The court notes that “the elements of this offense, then, are straight-forward. If a person has had his or her driver license revoked as an HTO and he or she drives a motor vehicle on the state’s highways while such license is revoked, the offense has been committed. Quite obviously, the word ‘notice’ is nowhere to be found.” id.

Even though there are several cases out there supporting the Rodgers opinion that notice is required, this appellate court decided that “there is no reason to prolong this error . . . Today we acknowledge an inadvertent mistake and rectify it.” id at 25-26.

And there you have it. Robinson thought the state was required to prove he received notice of his HTO suspension, but that’s not the case. It’s rare to see an appellate court fess up to a big mistake like this, so savor their honesty while you can.

SIDE NOTE: Driving while license suspended as an HTO is beat by preparation, not by jury (you see from above how little the prosecutor need prove to send someone to prison). The Robinson court hints at what we defense attorneys know to be true–that due process requires a legitimate HTO, notice and everything. As such, these cases involve lots of “appeals” attacking the underlying cases that make up the 5-year suspension. The work goes in up front to remove the HTO suspension so that, by the time you arrive in court, the HTO is gone. Once the HTO is gone, you move in limine to preclude the state from using their old, stale driving record that incorrectly contains an HTO suspension. The court should only use the new, corrected driving record which contains no evidence of an HTO, and the state is left with no way of proving their case. In reality, a Motion in Limine is rarely necessary, as most prosecutors recognize the “administrative due process” alluded to in Robinson and they will drop the charges once you show them a corrected driving record where the HTO is removed.