Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Habitual Traffic Offender – Department properly considered the conviction for driving while license suspended (DWLS), with a conviction date of September 26, 2005, in finding the Petitioner was a habitual traffic offender as the driver paid the civil penalty and no exception applied - Section 318.14(4) provides that a person who pays a civil penalty for a noncriminal infraction is deemed to have admitted the infraction -  Department erred in considering Petitioner’s DWLS, with a conviction date of December 22, 2003, as this offense was the result of failure to attend a driver improvement course in which adjudication was withheld and Petitioner’s driving privilege was reinstated – this infraction falls squarely within one of the defined exceptions set forth by sections 318.14(10)(a)1 and 318.14(11) - Petition granted.  Kimel v. Dept. of Highway Safety and Motor Vehicles, No. 06-0002AP-88B (Fla. 6th Cir. App. Ct. April 25, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

RICK DOUGLAS KIMEL,

                        Petitioner,

 

vs.                                                                                                Appeal No. 06-0002AP-88B

                                                                                                    UCN522006AP000002XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________________/

 

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI 

            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 granted as set forth below.

            The Petitioner, Rick Douglas Kimel (Kimel), seeks review of the Order of License Revocation, Suspension, or Cancellation, entered December 8, 2005, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), automatically suspended Kimel’s driving privilege license for a period of five years for being designated a habitual traffic offender in violation of Florida Statutes, § 322.27(5).  In reviewing the Order and the administrative action taken by the Department, this Court must determine whether Kimel was afforded procedural due process, whether the essential requirements of law were observed, and whether the Department’s 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 Kimel received three convictions for driving while license suspended (DWLS) on December 22, 2003, September 26, 2005, and November 18, 2005.  The Department issued its Order on December 8, 2005, based on these convictions.  Kimel argues that the Department erred in including the conviction date of September 26, 2005, which had an offense date of September 13, 2005, in determining that Kimel was a habitual traffic offender (HTO) for receiving three convictions for DWLS in a 5-year period.  See Fla. Stat. § 322.264(1)(d)(defining habitual traffic offender as including any person who receives 3 or more convictions for DWLS within a 5-year period).  In considering Kimel’s driving record, the Court finds that the Department did properly include the September 2005 conviction date, but erroneously included the December 22, 2003, conviction date in determining that Kimel was a habitual traffic offender.

            There are several statutory provisions pertinent to the issues raised by Kimel.  Florida Statutes, § 322.264, provides that one way a person can become a HTO is by being “convicted” of driving with a suspended license three times in a 5-year period.  The legislature defined “conviction” as:

any offense relating to the operation of motor vehicles on highways which is a violation of this chapter or any other such law of this state or any other state, including an admission or determination of a noncriminal traffic infraction pursuant to s. 318.14, or a judicial disposition of an offense committed under any federal law substantially conforming to the aforesaid statutory provisions.  See Fla. Stat. 322.01(10).

 

Florida Statutes, § 318.14(4), provides that a person who pays a civil penalty for a noncriminal infraction is “deemed to have admitted the infraction.”  Thus, when Kimel paid his civil penalty on September 26, 2005, he was deemed to have admitted the fact that he was driving on a suspended license. 

            The Court finds that Kimel’s argument that the September 26, 2005, conviction could not form the basis for the HTO, because under § 318.14(4) the admission is not admissible under any proceeding, is wrong.  As pointed out by the Department, § 322.01(10) specifically includes an admission under § 318.14 as a conviction for HTO purposes.  The only way this provision has any meaning is if the language in § 318.14(4) applies to proceedings other than administrative proceedings relating to the specific case.  Otherwise, it would be impossible to ever pursue such convictions as a basis for HTO and the provisions of § 322.01(10) would be rendered a nullity.  The provisions must be construed together to give effect to the legislative intent.  See Roberts v.  State, 923 So.2d 578 (Fla. 5th DCA 2006)(finding that absent contrary legislative intent, two chapter statutory provisions should be read in pari materia).  This finding is consistent with the cases cited by Kimel, the Florida Supreme Court decision in Raulerson v. State, 763 So.2d 285, 293-94 (Fla. 2000), and the Second District Court of Appeal in Department of Highway Safety and Motor Vehicles v. Rosenthal, 908 So.2d 602, 606 (Fla. 2d DCA 2005).

            However, the Court finds that Florida Statutes, § 318.14(10)(a), allows a driver to elect to enter a plea of nolo contendere and provide proof of compliance to the clerk of court when such person is charged with the offense of operating a motor vehicle with a license that has been suspended for failure to appear, failure to pay a civil penalty, or failure to attend a driver improvement course; in such cases, adjudication is to be withheld.  Florida Statutes, § 318.14(11), states that “[i]f adjudication is withheld for any person charged or cited under this section, such action is not a conviction.”  As interpreted by the Florida Supreme Court in Raulerson, 763 So.2d at 293-94 and Rosenthal, 908 So.2d at 606, these statutory provisions provide an exception to the general rule that dispositions under Chapter 322 involving adjudications withheld are still considered convictions for the purposes of establishing habitual offender status for DWLS offenses. 

            In this case, Kimel’s driver record abstract, submitted by the Department as Exhibit 1, indicates that Kimel was convicted for DWLS on September 26, 2005, and November 11, 2005, after canceling his personal injury protection coverage.[1]  Regardless of whether adjudication was withheld or not, a license suspension as a result of not paying for required automobile insurance is not one of the statutory exceptions for purposes of determining a DWLS conviction.  However, Kimel’s first offense for DWLS, December 22, 2003, was the result of failure to attend a driver improvement course.  The driver record shows that adjudication was withheld and Kimel’s driving privilege reinstated.  The Court finds that this first conviction falls squarely within one of the defined exceptions set forth by Florida Statutes, § 318.14(10)(a)1 and § 318.14(11), and as explained in Raulerson and Rosenthal.  See id.  Accordingly, the Court finds that the Department departed from the essential requirements of law in including the December 22, 2003, infraction as a “conviction” for purposes of determining whether Kimel was a habitual traffic offender.

 

 

 

 

 

 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Order of License Revocation, Suspension, or Cancellation is quashed. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of April 2006.

 

 

                                                ______________________________

                                                DAVID A. DEMERS

                                                Circuit Judge, Appellate Division

 

 

 

 

 

_____________________________                                      _____________________________

PETER RAMSBERGER                                                    ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                           Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

R. Michael Robinson, Esquire

3035 – 5th Avenue North

St. Petersburg, FL  33713

 

Carlos J. Raurell, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762

 

 



[1] The Court notes that the offense dates of these two convictions were less than two weeks apart and likely related to the same offense, driving without the required insurance.