Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:DRIVERíS LICENSES Ė Permanent revocation Ė defendantís plea agreement in separate criminal proceeding has no bearing on Departmentís revocation for four DUI convictions Ė application of laches or estoppel has no application when permanent revocation was statutorily mandated - Petition denied.Starr v. Dept. of Highway Safety and Motor Vehicles, No. 04-0076AP-88A (Fla. 6th Cir. App. Ct. March 2, 2005).







††††††††††††††††††††††† Petitioner,


vs.††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† Appeal No. 04-0076AP-88B

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† UCN522004AP000076XXXXCV




††††††††††††††††††††††† Respondent.





††††††††††† THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

††††††††††† The Petitioner, Mark Edward Starr (Starr), seeks review of the Order of License Revocation, Suspension, or Cancellation, dated September 20, 2004, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), permanently revoked Starrís driverís license following his fourth DUI conviction on January 2, 2002.In reviewing the Order and the administrative action taken by the Department, this Court must determine whether Starr was afforded procedural due process, whether the essential requirements of law were observed, and whether the Departmentís findings and judgment are supported by competent substantial evidence.See Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

††††††††††† The record shows that Starr received his fourth DUI conviction on January 2, 2002.As set forth in the Departmentís Order, the three prior convictions were on April 2, 1981 (Seminole County, Florida), February 5, 1985 (Orange County, Florida), and July 16, 1997 (Virginia).At the plea and sentencing hearing on January 2, 2002, the trial court believed that it was Starrís second DUI convictions and revoked his driverís license for a period of five years.

††††††††††† Before this Court, Starr raises several arguments, including: the trial courtís ruling on January 2, 2002, should have been a final determination of his license revocation; the doctrine of laches should bar the permanent revocation of his license; that Starrís plea on January 2, 2002, was entered into with the understanding that his license would be revoked for only 5 years; and, the decision of Florida Department of Highway Safety and Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla. 2003), declaring Chapter 98-223, amending Florida Statutes, ß 322.271 and ß 322.28, unconstitutional prohibits the permanent revocation of his driverís license.

††††††††††† In addressing these issues, the Court finds that at the time of Starrís conviction in 2002, Florida Statutes, ß 322.28(2)(e), provided that the court shall permanently revoke the driverís license of a person that has been convicted four times for DUI.(emphasis added).The trial court had no discretion but to permanently revoke Starrís license.See Department of Highway Safety and Motor Vehicles v. Spells, 502 So.2d 19, 21 (Fla. 2d DCA 1986)(stating that revocation periods must be strictly applied).However, as stated above, the trial court was unaware that it was Starrís fourth DUI conviction and imposed a lesser sentence.While it is unclear why it took the Department almost three years to permanently revoke Starrís license for four DUI convictions,[1] it nevertheless had the authority to revoke Starrís license without notice regardless of the trial courtís ruling in 2002.See Fla. Stat., ß 322.22; see also State, Department of Highway Safety and Motor Vehicles v. Davis, 775 So.2d 989 (Fla. 1st DCA 2000)(holding that the entry of Departmentís order canceling driverís license without prior notice did not violate due process clause).As explained by the First District Court of Appeal in State, Department of Highway Safety and Motor Vehicles v. Gordon, 860 So.2d 469, 471 (Fla. 1st DCA 2003), ď[a]ny bargain a defendant may strike in a plea agreement in a criminal case has no bearing on administrative consequences that flow from the defendantís actions.Ē†††

††††††††††† Accordingly, the fact that Starr entered into a plea based on a sentence for a second DUI conviction, for which the Court notes he received the benefit of reduced fines and costs, does not preclude the Department from permanently revoking Starrís license based on the four DUI convictions he actually has.Indeed, other than vaguely stating that there may be a concern regarding the Virginia DUI conviction, Starr does not dispute that he has four DUI convictions.The Court also finds that since permanent revocation was statutorily mandated, the application of laches or estoppel has no application in this case.See e.g. Branca v. City of Miramar, 643 So.2d 604, 607 (Fla. 1994)(estoppel cannot be applied against a governmental entity to accomplish an illegal result); see also Hagar, 581 So.2d at 216-17 (rejecting driverís argument that the Department should be equitably estopped from revoking his license when the Department failed to list out-of-state traffic offenses on driving record transcript).†††††

††††††††††† Lastly, the Court finds that Critchfield has no application to this proceeding, as even under the prior version of Florida Statutes, ß 322.271(4)(1997), Starr would not have been eligible for a hardship license until January 2007.The constitutional defect recognized in Critchfield, has since been cured by the legislature when it reenacted the 1999 version of the Florida Statutes, effective July 1, 2003.See State, Department of Highway Safety and Motor Vehicles v. Fountain, 883 So.2d 300, 301 (Fla. 1st DCA 2004).†††††

††††††††††† Therefore, it is,

††††††††††† ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

††††††††††† DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of March 2005.




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Copies furnished to:

Russell F. McLatchey, Esquire

531 Dog Track Road

Longwood, FL32750


Jason Helfant, Assist. General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL33135


[1] There is no time limitation or period prescribed by Chapter 322 within which the Department must take action to suspend or revoke a driverís license.See Department of Highway Safety and Motor Vehicles v. Hagar, 581 So.2d 214, 217 (Fla. 5th DCA 1991).†††