NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 07-00040APANO UCN 52-2007AP00040XXXXCR
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
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.
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
“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.” 
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.
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.
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 (
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,
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.
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
 State’s Answer Brief, Exhibits 7, 8 and 9.
 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
 Case numbers, CRC 01-12581CFANO, CRC 01-14016CFANO, CRC 01-18325CFANO, CRC 02-03880CFANO and CRC 02-08330CFANO
 Appellant’s Reply Brief, pages 7-8.
 State’s Answer Brief, Exhibit 5.