Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT PAUL BURNS ANDERSON, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D19-1545 July 30, 2021 Appeal from the Circuit Court for Lee County; Maria E. Gonzalez, Judge. Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee. SLEET, Judge. Paul Anderson challenges his convictions and sentences for operating an unregistered vehicle, driving while license suspended or revoked (DWLSR) third or subsequent conviction, and possession of a controlled substance. Anderson first argues that the trial court erred by imposing a $100 public defender fee without providing him notice and an opportunity to be heard. The Florida Supreme Court has rejected this argument in State v. J.A.R., 46 Fla. L. Weekly S157, S158 (Fla. June 3, 2021), and accordingly, we affirm this portion of Anderson's judgment and sentences without further comment. Anderson also argues that his trial counsel was ineffective on the face of the record for failing to object to the sufficiency of the State's evidence of the prior DWLSR convictions necessary to convict him of a felony on that count. We agree, reverse only Anderson's DWLSR felony conviction, and remand for entry of a judgment for the underlying misdemeanor and resentencing. After the jury returned a guilty verdict on the DWLSR charge, the trial court, defense counsel, and the prosecutor discussed "phase two" of the proceeding wherein the jury had to determine whether Anderson had two or more previous DWLSR convictions that would render the instant offense a felony. See § 322.34(2)(c), Fla. Stat. (2018). During the sidebar, defense counsel agreed to the 2 trial court's giving the standard instruction on phase two and the prosecutor then stated, "I know the driver's license record was entered unredacted as a whole, but I have a separate one, redacted one, that only shows priors." No other evidence of prior convictions was presented. Instead, the trial court proceeded directly to instructing the jury on "phase two" as follows: Members of the jury, there is a second part to this particular trial. I almost forgot about it, I was going [to] discharge you, but this is the second part of this trial. You found the defendant in this case guilty on the charge of Driving While License Suspended or Revoked, which is Count II. There is the second part of that I have to instruct you on. Now you have to separately go back and decide that part. And for that particular section you are going to get another part of the actual driving record, okay, that was not previously given to you. Will you please go ahead and give it to them. Hold on to that while I instruct you then you'll take that back with you. .... . . . You must now determine beyond a reasonable doubt whether: A. Paul Burns Anderson was previously convicted of Driving While License Suspended or Revoked prior to October 12, 2018 on two or more prior occasions. Or 3 B. Paul Burns Anderson was previously convicted of Driving While License Suspended or Revoked prior to October 12, 2018 on one prior occasion. (Emphasis added.) After the jury exited to deliberate, the trial court asked if there were any objections and defense counsel affirmatively stated that there were no objections from the defense. On appeal, Anderson recognizes that defense counsel did not preserve this issue below but maintains that convicting him of the felony where his driving record was the only evidence of the necessary prior convictions for felony DWLSR amounted to fundamental error. In the alternative, he argues that counsel's failure to preserve this argument below amounts to ineffective assistance of counsel on the face of the record. He maintains that his conviction should be reduced from a third-degree felony to a second-degree misdemeanor. We first note that Anderson is correct that "[w]hen prior convictions constitute an element of a charged crime, the prior convictions must be proven beyond a reasonable doubt by introduction of certified copies of each judgment." Garcia v. State, 800 So. 2d 725, 726 (Fla. 2d DCA 2001). In Garcia, this court 4 reversed a felony DWLSR conviction "because the State, over objection, relied on a certified copy of Garcia's driving record to prove the historical fact of Garcia's two prior convictions for driving with a suspended license" and thus "failed to prove beyond a reasonable doubt" that element of the felony charge. Id.; see also Garrett v. State, 803 So. 2d 801, 803 (Fla. 2d DCA 2001) ("Pursuant to Sylvester v. State, 770 So. 2d 249, 251 (Fla. 5th DCA 2000), . . . the computerized driving record is insufficient proof of the prior offense[s] required to convict Garrett of the felony offense of driving while license suspended.");1 Williams v. State, 865 So. 2d 5, 6 (Fla. 4th 1 In Sylvester, 770 So. 2d at 251, the Fifth District reversed a felony DWLSR conviction because "[i]t is not enough that the [S]tate introduce the driving record if it plans to enhance a defendant's punishment; the [S]tate must prove that the defendant has been convicted of each crime that is used to enhance the defendant's punishment . . . and link the defendant to the convictions." In Arthur v. State, 818 So. 2d 589, 592 (Fla. 5th DCA 2002), the Fifth District receded from Sylvester "to the extent that [it] conflicts with this opinion." In that case, Arthur was challenging a conviction for driving while license revoked as a habitual offender charged under section 322.34(5). On appeal he argued that the State's introduction of his driving record to establish that his license had previously been revoked by the Department based on a habitual offender designation allowed inadmissible hearsay, violated the best evidence rule, and denied him his right to confrontation. The Fifth District rejected these arguments and affirmed. It is unclear what in Sylvester the court believed conflicted with its holding in Arthur, and in fact, Judge Thompson pointed out in his 5 DCA 2003) (reversing conviction for felony DWLSR where one of the prior convictions was established only by the defendant's driving record and "there [wa]s no . . . corroborative evidence" of that conviction); Arthur v. State, 818 So. 2d 589, 593, 594 n.3 (Fla. 5th DCA 2002) (Thompson, J., concurring in part, dissenting in part) (noting that pursuant to section 322.34(2)(c), in order to prove the third-degree felony of DWLSR, the State must prove beyond a reasonable doubt that the "defendant had been convicted of DWLS[R] two or more times before the instant charge," not that "the Department records reflect that defendant was convicted of DWLS[R] two or more times before the instant charge" (emphasis omitted)).2 partial dissent that the cases did not even deal with the same offenses: "Arthur's driving record reflects that the Department . . .— the creator of the record—had previously revoked defendant's license. In Sylvester, . . . the driving record reflects only that on at least two previous occasions the Department had been told that the defendant was convicted" of DWLSR. Arthur, 818 So. 2d at 593 (Thompsons, J., concurring in part and dissenting in part). Based on our reading of both cases, it does not appear that the portion of Sylvester that holds a driving record alone is insufficient to prove prior DWLSR convictions beyond a reasonable doubt is in conflict with the holding in Arthur. But in any event, this court's opinion in Garrett is still good law, and Garrett and Garcia are the law in the Second District. 2 But see Ibarrondo v. State, 1 So. 3d 226 (Fla. 5th DCA 2008). In Ibarrondo, the appellant challenged both his convictions for 6 felony DWLSR under section 322.34(2)(c) and felony DUI under section 316.193, Florida Statutes (2007), arguing as to both that the State's evidence of the requisite prior convictions—his driving record—was insufficient to prove that element of the offenses. The Fifth District concluded that as to both offenses, Ibarrondo's driving record was sufficient. With regard to the felony DUI charge, the court pointed out that section 316.193(12) states that if the Department's records "show that the defendant has been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to establish that prior conviction for driving under the influence. However, such evidence may be contradicted or rebutted by other evidence." The Ibarrondo court then extended this section 316.193(12) language to appellant's section 322.34(2)(c) offenses. Id. at 235 n.1 ("For the reasons delineated above, the unrebutted driving records were sufficient for the jury to find, beyond a reasonable doubt, that Ibarrondo had in fact been convicted of the prior DWLS[R] convictions listed in his driving record."). While it may be seem reasonable to conclude that section 316.193(12)'s acceptance of the driving record as sufficient evidence of prior DUI convictions would just as logically apply to proving prior DWLSR convictions to convict a defendant charged under section 322.34(2)(c), for whatever reason, the legislature has chosen not to include such language in section 322.34, and we must assume such choice was made purposefully. See State v. James, 298 So. 3d 90, 93 (Fla. 2d DCA 2020) ("[W]hen the legislature has included a provision in one statute[] but omitted it in an analogous statute, courts should not read it into the statute from which it has been excluded."). We recognize that section 322.34(2) does state that "[t]here shall be a rebuttable presumption that the knowledge requirement is satisfied if a judgment or order . . . appears in the Department's records." (Emphasis added.) However, the plain language of this section restricts the rebuttable presumption to the element that the defendant had knowledge of the suspension or revocation of his license when he committed the offense, and we cannot extend it to the prior convictions element of the felony charged here. See, e.g., James, 298 So. 3d at 93 ("[C]ourts must 'presume that [the] 7 Here, the only evidence provided to the jury as to Anderson's prior convictions was Anderson's driving record. As such, the State's evidence was insufficient to prove that element of the felony offense. However, this error was not preserved, and the Florida Supreme Court has held that "the State's failure to prove an element of a crime beyond a reasonable doubt does not constitute fundamental error." See Monroe v. State, 191 So. 3d 395, 400 (Fla. 2016) (citing F.B. v. State, 852 So. 2d 226, 227 (Fla. 2003)). The only instance other than a death penalty case "in which an unpreserved challenge to the sufficiency of the evidence can be reviewed" is "when there is insufficient evidence that the defendant committed any crime." Id. at 401. Here, the evidence established misdemeanor DWLSR, and therefore, contrary to Anderson's assertion, fundamental error did not occur. However, we do find merit to Anderson's argument that his trial counsel was ineffective on the face of the record for failing to raise the sufficiency of the evidence argument below. We recognize legislature says in a statute what it means and means in a statute what it says there.' " (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992))). 8 that "[w]ith rare exception, ineffective assistance of counsel claims are not cognizable on direct appeal . . . because an appellate court must, under normal circumstances, confine itself to 'review of only those questions' that were before the trial court." Ellerbee v. State, 87 So. 3d 730, 739 (Fla. 2012) (quoting State v. Barber, 301 So. 2d 7, 9 (Fla. 1974)). However, "[a]n ineffective assistance of counsel claim may be brought on direct appeal . . . where (1) the ineffectiveness is apparent on the face of the record[] and (2) it would be 'a waste of judicial resources to require the trial court to address the issue.' " Id. (quoting Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987)). In Monroe, the Florida Supreme Court stated that "[t]he failure to properly preserve an otherwise clear error may constitute ineffective assistance of counsel cognizable on direct appeal" and that this includes the failure to raise "serious concerns pertaining to the sufficiency of the evidence presented by the prosecution." 191 So. 3d at 403. In Monroe, the defendant was sentenced to life on a capital sexual battery conviction. Although the State's evidence did not establish that the defendant was eighteen or older at the time of the offense, counsel did not move for judgment of 9 acquittal on the capital offense and seek a conviction of a lesser included offense. The court in Monroe held (1) that counsel's failure was "patently unreasonable," (2) that Monroe was prejudiced by being convicted of the greater offense and because "if this error had been properly preserved . . . [it] would have been reviewed [on direct appeal] under a de novo standard, rather than for fundamental error," and (3) that "it would be a waste of judicial resources to wait until Monroe seeks postconviction relief . . . when the unreasonableness of the actions of trial counsel and the prejudice to Monroe are indisputable from the face of the record." Id. at 403- 04. Here, as in Monroe, "[w]e can think of no plausible justification for [the] decision[] of trial counsel" to not challenge the sufficiency of the State's evidence of Anderson's prior DWLSR convictions. See id. at 403. We can conceive of no strategic reason for the decision, and it is clear that Anderson suffered prejudice as he was exposed to conviction of a third-degree felony rather than a second-degree misdemeanor when the State's evidence was clearly insufficient to prove the felony. Cf. Morales v. State, 170 So. 3d 63, 67 (Fla. 1st DCA 2015) ("Morales's claim of ineffective assistance of counsel on 10 direct appeal . . . requires ineffectiveness obvious on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct."). Accordingly, we reverse Anderson's judgment and sentence for felony DWLSR and remand for entry of judgment for misdemeanor DWLSR and for resentencing. See Garcia, 800 So. 2d at 726. We also certify conflict with Ibarrondo v. State, 1 So. 3d 226, 235 n.1 (Fla. 5th DCA 2008), to the extent that it holds that the prior convictions necessary to prove felony DWLSR under section 322.34(2)(c) may be established solely by introduction of a defendant's driving record. We affirm Anderson's other convictions and sentences in all other respects. Affirmed in part, reversed in part, and remanded. NORTHCUTT and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 11