BRIAN ALEXANDER FUNDERBURK v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRIAN ALEXANDER FUNDERBURK,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1667
[February 20, 2019]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 56-2017-CF-000106A.
Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Brian Funderburk appeals his conviction and sentence after entering a
negotiated plea, arguing that he pled to a non-existent crime not charged
in the information; he was charged with “Driving While License Revoked –
Habitual Offender,” but his judgment and probation order reflect a
conviction for “Driving While License Suspended – Habitual Offender.”
We affirm appellant’s sentence, but remand with instructions to correct
the scrivener’s error on the judgment and probation order to reflect that
appellant was convicted of Driving While License Revoked – Habitual
Offender, as charged in the information.
Appellant was pulled over by a St. Lucie County Sheriff’s Officer for not
wearing his seat belt. When the officer asked for his driver’s license,
appellant stated that his license was suspended. After reviewing
appellant’s identification through NCIC/FCIC and DAVID,1 the officer
1 NCIC is the acronym for National Crime Information Center; FCIC is the
acronym for Florida Crime Information Center; and DAVID is the acronym for
Driver and Vehicle Information Database.
learned that appellant’s license had been “revoked since 06/06/2016 due
to three prior driving while license suspended charges and failure to
appear charges,” and that appellant was considered a habitual traffic
offender.
As a result, the officer arrested appellant for a “violation of F.S.S.
322.34(5), driving while license revoked (habitual offender).” The officer
also issued a traffic citation for “DRIVING WHILE LICENSE SUSPENDED
OR REVOKED” under section 322.34(5), again noting that appellant’s
license was “revoked on 06/06/16.”
Appellant was later charged in a one-count information. The heading
of the information described the offense as “Driving With License
Suspended – Habitual Traffic Offender.” However, the body of the
information alleged that appellant drove with a revoked license in violation
of section 322.34(5), Florida Statutes.
Appellant entered a negotiated plea. Tracking the heading in the
information, the plea form stated that appellant was charged with “Driving
With License Suspended – Habitual Traffic Offender” and that he was
entering his plea “[a]s charged.” At the plea hearing, the trial court
explained the plea agreement to appellant, stating, in pertinent part, “[The
plea form] tells me that you were charged with driving with a suspended
license as a habitual traffic offender . . . a third-degree felony punishable
by up to five years of incarceration . . . .” The court asked appellant,
“[Y]ou’re here today to enter a no contest plea to that charge, correct?”
Appellant responded, “Yes, sir.” Defense counsel stipulated that there was
a factual basis for the plea.
The trial court accepted appellant’s plea, adjudicated him guilty, and
imposed the agreed-upon jail sentence, followed by two years of probation.
Both the judgment and probation order refer to appellant’s offense as
“DRIVING WITH LICENSE SUSPENDED-HABITUAL TRAFFIC
OFFENDER.” However, the judgment cites section 322.34(5), Florida
Statutes, as the “offense statute number,” and this section pertains to
driving with a revoked license as a habitual offender.
On appeal, the parties acknowledge that “[w]hen a ‘discrepancy exists
between the offense designated in the information heading and the crime
depicted in the body of the instrument, the offense described in the body
is the one with which the defendant is charged.’” Castillo v. State, 929 So.
2d 1180, 1182 (Fla. 4th DCA 2006) (quoting Troyer v. State, 610 So. 2d
530, 531 (Fla. 2d DCA 1992)). Therefore, both parties agree that appellant
was charged with “Driving While License Revoked – Habitual Offender” in
violation of section 322.34(5), Florida Statutes (2017).
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The parties disagree as to the crime to which appellant entered his plea.
Appellant contends that he did not plead to the offense of driving with
a revoked license as a habitual offender, as charged in the information;
rather, he asserts that he pled guilty to driving with a suspended license
as a habitual offender—a non-existent crime for which he was not charged.
The offense of driving with a suspended license is set forth in section
322.34(2), Florida Statutes, which provides:
(2) Any person whose driver license or driving privilege has
been canceled, suspended, or revoked as provided by law,
except persons defined in s. 322.264 [i.e. habitual traffic
offenders], who, knowing of such cancellation, suspension, or
revocation, 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.
§ 322.34(2), Fla. Stat. (2017) (emphasis added). “This statutory subsection
expressly provides that it does not apply to habitual traffic offenders . . . .
[A] habitual traffic offender cannot violate subsection (2).” Gil v. State, 118
So. 3d 787, 791 (Fla. 2013). Therefore, while driving with a suspended
license is a recognized offense in Florida, driving with a suspended license
as a habitual offender is not.
After reviewing the entire record, we conclude that appellant pleaded
guilty as charged. The body of the information charged a crime under
section 322.34(5), the same charge for which appellant was arrested, the
same charge contained in the officer’s uniform traffic citation. Nothing in
the record even hints that appellant relied upon the “suspended”
misnomer in entering his plea. Appellant cannot rely on verbal
legerdemain to set aside his plea. The sloppy use of the term “suspended”
instead of “revoked” at the plea conference does not rise to the level of
fundamental error.
We therefore affirm appellant’s sentence, but remand with instructions
to correct the judgment and probation order to reflect a conviction for
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Driving While License Revoked – Habitual Offender pursuant to section
322.34(5).
MAY and DAMOORGIAN, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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