Santiago v. State

731 So.2d 787 (1999)

Patricio SANTIAGO, Appellant,
v.
STATE of Florida, Appellee.

No. 98-3514.

District Court of Appeal of Florida, First District.

April 16, 1999.

Appellant pro se.

Robert A. Butterworth, Attorney General; James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Patricio Santiago raised five issues in his motion for postconviction relief. The trial court summarily denied Mr. Santiago's motion and he appealed. We find that only one issue merits discussion: Mr. Santiago contends that, under section 322.34, Florida Statutes, he should have been convicted of a first degree misdemeanor rather than of a third degree felony. Because the trial court did not apply the correct version of the statute, we remand for reconsideration. We otherwise affirm the order denying Mr. Santiago's motion for postconviction relief.

In his motion for postconviction relief, Mr. Santiago alleged that his conviction for driving with his license suspended or revoked was a first degree misdemeanor because it was his first conviction after having had his license revoked as a habitual traffic offender. The trial court denied the motion on the basis that section 322.34(5), Florida Statutes (1997), makes it a third degree felony to drive in Florida after a person has had a license revoked as a habitual traffic offender. The 1997 version of the statute did not, however, go into effect until October 1, 1997. See Ch. 97-300, § 40, at 5414, § 54, at 5421, Laws of Fla. According to Mr. Santiago's motion, he was convicted on March 5, 1997.

Under the earlier version of the statute, Mr. Santiago may have a legitimate claim that he should have been convicted of only a first degree misdemeanor. See State v. Harvey, 693 So.2d 1009, 1010-11 (Fla. 4th DCA 1997). Section 322.34, Florida Statutes (1995), reads as follows:

(1) Any person whose driver's license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, and who drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:

(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any person whose driver's license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked upon:

(a) A first conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) A second or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis supplied.) We therefore remand for reconsideration under the appropriate version of section 322.34, Florida Statutes.

Affirmed in part, reversed in part, and remanded.

MINER, BENTON, and BROWNING, JJ., CONCUR.