County Criminal Court:  CRIMINAL LAW – Post Conviction Relief.  Alleged failure of defense counsel to “inform” the State about the future legal effect of five misdemeanor dispositions did not amount to ineffective assistance of counsel.  Appellant’s designation as a “habitual traffic offender” was a DHSMV matter.  Appellant was not entitled to relief by a constitutional challenge not raised in the postconviction motion before the trial court.  Order denying postconviction relief is affirmed.  Cobb v. State, No. CRC 07-40 APANO, (Fla. 6th Cir.App.Ct. Jan. 23, 2008).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STANLEY D. COBB

 

            Appellant,

 

Appeal No. CRC 07-00040APANO UCN 52-2007AP00040XXXXCR

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Denying

Motion for Post Conviction Relief

entered by the Pinellas County Court

County Judge Edwin B. Jagger

 

Stanley D. Cobb, Pro Se

 

C. Marie King, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Stanley D. Cobb’s appeal from an Order Denying Motion for Post Conviction Relief.

Factual Background and Trial Court Proceedings

Appellant, Stanley D. Cobb, pled nolo contendere on September 3, 2002 to five instances of Driving While License Suspended or Revoked as charged in five separate misdemeanor cases.  Attorney Cynthia Bryant represented the Appellant in these cases.  Pursuant to a plea agreement, the Appellant was adjudicated guilty and sentenced to time-served in each of the five misdemeanor cases.  The Appellant did not appeal the Judgments and Sentences entered pursuant to the plea agreement.   On September 22, 2003, more than a year later, the Appellant filed a Motion to Withdraw Plea.  That motion was denied by the court, as untimely, by order dated October 21, 2003.  On March 31, 2004, the Appellant filed a Motion for Post Conviction Relief.  In his initial brief the Appellant asserts that he filed a Motion for Post Conviction Relief on July 7, 2006.  In his reply brief the Appellant asserts that he filed a Motion for Post Conviction Relief on March 31, 2004 and a second Motion for Post Conviction Relief on July 7, 2006.  Court records do not show that any second Motion for Post Conviction Relief was ever filed.  On April 18, 2007, the trial court entered its order denying the Motion for Post Conviction Relief.  Thereafter this appeal was timely filed.

On October 3, 2002, the Appellant entered a change of plea agreement, and was adjudicated guilty and sentenced in thirteen (13) separate felony cases in Circuit Court in Pinellas County.[1]  Those felony cases are not related to the present appeal.[2]  Five of those cases included a felony charge of Driving While License Suspended or Revoked.[3]  The Felony Information in each of those five cases was filed prior to September 3, 2002 and therefore could not possibly have used the misdemeanor convictions of that date as a predicate offense for the respective felony charges of Driving While License Suspended or Revoked.  Appellant, in his reply brief states:

“For some odd reason, the State was able to obtain a plea agreement Form that was signed on October 3, 2002 in Division “M” before the Honorable Judge Richard A. Luce, for charges that have nothing to do with the cause now before this Court.  This appeal is not about felony convictions for DWLS/R that was dispose on October 3, 2002.” [4]

 

Stated simply, the misdemeanor convictions of September 3, 2002, that are the subject of the present appeal, had nothing to do with the above described thirteen (13) felony cases.

Appellant’s Motion for Post Conviction Relief

            1. Ground One.  The Appellant in his Motion for Post Conviction Relief argues in Ground One that he received ineffective assistance of counsel, specifically that counsel allowed him to enter a plea “but failed to inform the State that these convictions would not support the State’s grounds to classify (Defendant) as a habitual traffic offender as defined by law.”  There are several problems with this argument.  First, the misdemeanor convictions of September 3, 2002 were not used as predicate offenses for the felony charges of Driving While License Suspended or Revoked described above.  Second, the five-year drivers license revocation that was imposed some time after the change of plea and sentencing in the misdemeanor cases was not done by the trial court and was not part of the trial courts’ misdemeanor sentences, and is a matter within the jurisdiction of the Department of Highway Safety and Motor Vehicles.  Appellant does not allege that counsel misadvised him about the revocation.  To the contrary, counsel secured a plea agreement that allowed Appellant to plead to the five misdemeanor offenses with a time-served disposition, at a time when he had pending, among other charges, five felony charges of Driving While License Suspended or Revoked.  Third, Appellant’s counsel, having secured a most advantageous plea disposition in the misdemeanor cases, would have no obligation in those cases to “inform” the State about the future legal effect of the five misdemeanor dispositions.  The Appellant has alleged nothing that amounts to ineffective assistance of counsel in the misdemeanor cases.

2. Ground Two.  The Appellant in his Motion for Post Conviction Relief argues in Ground Two that the five-year revocation of his driver’s license was in excess of the maximum authorized by law.  The Appellant’s argument is wrong as a matter of fact and as a matter of law.  First, as detailed above, on September 3, 2002, Appellant entered a change of plea agreement, and was adjudicated guilty and sentenced on the present five misdemeanor charges of Driving While License Suspended or Revoked.  On October 3, 2002, the Appellant entered a change of plea agreement, and was adjudicated guilty and sentenced on separate felony charges.  The Appellant accumulated all of these convictions in approximately thirty days time.  Second, as a matter of law, a “habitual traffic offender” is any person whose driving record shows has accumulated three or more convictions of certain enumerated offenses in a five year period. § 322.264, Fla. Stat. (2002).  Any person designated as a “habitual traffic offender” shall have their license revoked for five years. § 322.27(5), Fla. Stat. (2002).  It would appear to this court that the Appellant qualified as a “habitual traffic offender”.  If for some reason the Appellant did not so qualify, that is a matter within the jurisdiction of the Department of Highway Safety and Motor Vehicles.  As stated above, the driver’s license revocation was not imposed by and was not part of the trial courts’ misdemeanor sentences.  The Appellant’s argument in Ground Two is without merit.

 

Other Issues Raised by Appellant

1. Are the Misdemeanor Convictions subject to Constitutional Attack?  The Appellant argues that the instant misdemeanor convictions for Driving While License Suspended or Revoked pursuant to § 322.34, Fla. Stat. (2001) are unconstitutional in light of Ch. 98-223, Laws of Fla., having been held unconstitutional.  There are two problems with this argument.  First, Appellant did not raise this issue in his Rule 3.850 motion.  Second, even had it been raised the argument is without merit as a matter of law.  In the involved five misdemeanor cases the Appellant was not charged with a nonexistent crime.  He was charged with Driving While License Suspended or Revoked pursuant long standing provisions of § 322.34, Fla. Stat. (2001) that were not created by the legislation that was later ruled unconstitutional.  That legislation only amended § 322.34, Fla. Stat. to add a rebuttable presumption of knowledge of the previous cancellation, suspension, or revocation, in § 322.34(2) after (2)(c).  That new provision was not involved in the instant cases.  Other provisions of § 322.34 pertaining to knowledge could have been applicable had Appellant not entered pleas of nolo contendere.  Those provisions pre-existed the amendment and remained in effect after the amendment and provide,“(t)he element of knowledge is satisfied if the person has been previously cited as provided in subsection (1); or the person admits to knowledge of the cancellation, suspension, or revocation; or the person received notice as provided in subsection (4).  

In the present cases Appellant admitted that the State could prove his knowledge of the previous cancellation, suspension, or revocation of his driver’s license by pleading nolo contendere to misdemeanor charges in exchange for an adjudication of guilt and a time-served sentence.  His pleas acknowledge that the state could prove the necessary elements of the crimes charged. Chesebrough v. State, 255 So2d 675 (Fla. 1971); Giannetta v. State, 296 So2d 654 (Fla. 2nd DCA 1974).  Additionally this court notes that in the present five misdemeanor charges, without considering any previous charges, after the first of those five criminal episodes occurred, the Appellant would have been “previously cited” in the four subsequent misdemeanor driving while license suspended or revoked charges.  This court further notes that the Florida Uniform Traffic Citation in CTC01‑1681BFIANC, one of the involved five traffic citations, includes the officer’s notation that Appellant admitted knowledge. [5]  In any event the Appellant’s pleas of nolo contendere, in the present five misdemeanor cases, admitted all the facts which were well pleaded including Appellant’s knowledge of the previous cancellation, suspension, or revocation of his driver’s license.  The Appellant’s argument on this issue is without merit.

            2. No Attachments to Order.  Appellant argues that the post conviction trial court erred in failing to attach portions of the record in support of summary denial of his motion.  The difficulty with this argument is that the Appellant’s motion was insufficient on its face.   In Ground One, the Appellant stated nothing that could amount to ineffective assistance of counsel.  Appellant made no allegation that counsel misadvised him about the driver’s license revocation and defense counsel had no obligation to “inform” the State about the future legal effect of the five misdemeanor dispositions.  In Ground Two, the Appellant argues that his later designation as a “habitual traffic offender” and five-year drivers license revocation by the Department of Highway Safety and Motor Vehicles were unlawful.  Those asserted later actions are clearly matters done by and within the jurisdiction of the Department of Highway Safety and Motor Vehicles, not the trial court.  Finally, the Appellant’s motion did not raise the issue that § 322.34, Fla. Stat. (2001) was unconstitutional.  The post conviction trial court knew nothing of this issue.  In the present post conviction proceedings, the Appellant is not entitled to relief. Appellant’s argument on this issue is without merit.

Analysis and Conclusion

             After review of the proceedings in the trial court, this court concludes that the decision of the trial court to deny Appellant’s Motion for Post Conviction Relief was proper. The denial of the Appellant’s Motion for Post Conviction Relief should be affirmed.

            IT IS THEREFORE ORDERED that the order of the trial court denying Appellant’s Motion for Post Conviction Relief conviction is affirmed.

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of January, 2008.

_____________________________

Michael F. Andrews                                                 Circuit Court Judge

 

 

 

                                                            _____________________________

Raymond O. Gross

Circuit Court Judge

           

                                                           

 

                                                            ____________________________

                                                                        R. Timothy Peters

                                                                        Circuit Court Judge

           

cc:        Honorable John Carassas        

            Stanley D. Cobb, Pro Se

            Office of the State Attorney

                                                                                                                                   



[1] State’s Answer Brief, Exhibits 7, 8 and 9.

[2] Case numbers, CRC 01-05953CFANO, CRC 01-06778CFANO, CRC 01-10427CFANO, CRC 01-18130CFANO, CRC 01-19811CFANO, CRC 01-20047CFANO, CRC 02-09331CFANO, CRC 02-16226CFANO, CRC 01-12581CFANO, CRC 01-14016CFANO, CRC 01-18325CFANO, CRC 02-03880CFANO and CRC 02-08330CFANO

[3] Case numbers, CRC 01-12581CFANO, CRC 01-14016CFANO, CRC 01-18325CFANO, CRC 02-03880CFANO and CRC 02-08330CFANO

[4] Appellant’s Reply Brief, pages 7-8.

[5] State’s Answer Brief, Exhibit 5.