Criminal Defense
Since 1993
Since 1993
Clerks Option
Imagine this: You’re charged with a crime. The crime is Driving While License Suspended (DWLS). You get a court date. You have a Judge assigned. A prosecutor assigned. And then, somehow, all of the court dates, prosecutors, and judges are avoided. Is this possible? Yes. It’s called the clerk’s option.
Florida Statutes, 322.34(11)(a), allows a driver to elect to enter a plea of nolo contendere and provide proof of a reinstated license to the clerk of court when charged with DWLS, in cases where the license has been suspended for failure to appear, failure to pay a civil penalty, or failure to attend a driver improvement course. In this case, upon electing this so-called Clerks Option, adjudication is to be withheld. However, exercising a Clerks Option requires fast action, as the clerk must be presented with a reinstated license before ever going to a first court date.
By enacting this clerks option statute, the legislature recognized that leniency was appropriate for certain types of DWLS charges. The clerks option on a DWLS requires a person to reinstate his or her driver’s license with the clerk prior to the court appearance date indicated on the citation or notice to appear. Furthermore, Traffic Rule 6.360(b) authorizes the clerk to allow a person up to 60 additional days to reinstate the license (beware, clerks often do not comply with this rule–not with any malice, usually just ignorance of the rule). If a defendant still needs additional time to comply, a judge or traffic hearing officer may extend the time for compliance. Fla. R. Traf. Ct. 6.360(b); 6.040(a). See Raulerson v. State, 763 So.2d 291.
Adding further beauty to this Clerks Option is the fact that the Withhold of Adjudication received as a result of this election will not count towards the imposition of a five year Habitual Traffic Offender (HTO) suspension. Typically, a withhold on a criminal DWLS case counts towards the three strikes of an HTO suspension, but not a withhold under the clerks option outlined above.
Most clerk’s of court are unfamiliar with this option, so don’t be surprised if the clerk you’re asking to comply with the law knows nothing about this. Frequently, I’m seeing clients who are told that they “must go to their first court date” do elect this option and this is completely false. Specifically, law governing the Clerk’s Option states that a driver may elect this option “in lieu of payment of fine or court appearance.” Fla. Stat. 322.34(11)(a). So, how can it be that the statute requires the clerk to accept your no contest plea in lieu of a court appearance–and yet they want you to go to court? That defeats the purpose of the law, doesn’t it?
I’ve printed out, as best I can, what the clerk’s option looks like to a driver exercising such an option. Every clerk of court is different, but here’s the Seminole County version: IN THE COUNTY COURT, IN AND FOR SEMINOLE COUNTY, FLORIDA
NAME: STEVE JONES
CITATION NO: 1234-XYZ
ADDRESS: 425 N. ORANGE AVE.,
CASE NO. 2013-MM-1234AFFIDAVIT
STATE OF FLORIDA
COUNTY OF SEMINOLE
The undersigned does hereby swear or affirm, subject to the penalty of perjury and possible contempt of court, that as of this date I do not hold a commercial driver’s license; and, I have not elected, within the preceding twelve (12) months or more than three (3) times in my life, as set out in 322.34(11)(a) & (b), Florida Statutes, to have adjudication withheld by the Clerk. Further, I am entering a plea of nolo contendere and providing proof of compliance to the Clerk consisting of:
____ a) Valid, renewed or reinstated driver’s license; or
____ b) Registration certificate; or
____ c) Proper proof of Personal Injury Protection Insurance as required by 316.646 Florida Statutes.
__________________________
Defendant’s Signature
Sworn before me this _____ day of _______________________, 2013.
MARYANNE MORSE,
CLERK OF THE COURT
By: ________________________
Deputy Clerk
Electing the clerks option is tricky, and often times the clerk of court has little knowledge of how to treat such cases. A common response may be You can’t pay this ticket, its criminal, please go to court, we clerk’s only resolve civil citations. Well, don’t believe it. Give criminal defense attorney John Guidry a call so that all of your options may be reviewed. Go ahead, the call is free.