Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TROY DEONTRAY HODO, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-495 January 28, 2022 Appeal from the Circuit Court for Manatee County; Gilbert Smith, Jr., Judge. Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cynthia E. Richards, Assistant Attorney General, Tampa, for Appellee. STARGEL, Judge. Troy Deontray Hodo appeals his judgment and sentences for sale or delivery of a controlled substance, trafficking in fentanyl, and driving while license canceled, suspended, or revoked. We affirm Hodo's convictions and sentences for sale or delivery of a controlled substance and trafficking in fentanyl without comment. However, we reverse his conviction for driving while license canceled, suspended, or revoked because the version of the statute in effect when the crimes were committed, section 322.34(2)(a), Florida Statutes (2018), does not apply to Hodo as it does not appear that he was ever issued a driver's license. On September 13, 2018, Hodo arranged a drug sale with an undercover detective. He also drove the car in which the drug sale occurred. Following completion of the sale, a helicopter unit followed the vehicle Hodo was driving to a local convenience store. Hodo went inside the store where he was taken into custody. At trial, the State introduced Hodo's official driving record which stated that his "driving privilege . . . is revoked." The record does not show that the DMV ever issued him a driver's license; the record merely reflects the fact that Hodo had an identification card at the time of his arrest. At the conclusion of the State's case, Hodo moved for a judgment of acquittal and asserted that the State failed to prove he had a driver's license when he was arrested for violating 2 section 322.34(2)(a). The trial court denied the motion, and this appeal follows. This court reviews a motion for judgment of acquittal de novo. Beard v. State, 842 So. 2d 174, 176 (Fla. 2d DCA 2003) (citing Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002)). In moving for a judgment of acquittal, a defendant "admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence." Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Pagan, 830 So. 2d at 803. The plain language of the applicable version of section 322.34 states in relevant part: (2) Any person whose driver license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon: 3 (a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. The key issue in this appeal is whether Hodo had a "driver license or driving privilege" that was "canceled, suspended, or revoked" while he was driving to and from the undercover drug buy. The Florida Supreme Court has explained that "the Legislature's use of 'driving privilege' refers to all the individuals who may lawfully operate vehicles on Florida's roads, even if they do not possess a Florida driver license." State v. Miller, 227 So. 3d 562, 564 (Fla. 2017). "Individuals . . . who drive in Florida without ever having obtained a license or having an exemption to licensure, do not have any 'driving privilege.' " Id. Based upon the supreme court's opinion in Miller, the First District analyzed section 322.34(2), Florida Statutes (2016), and concluded that any person who has never had a state-issued driver's license and who is not exempt from the licensing requirements "does not have a driving privilege such that he or she can be convicted under section 322.34(1) or section 322.34(2)." 4 Williams v. State, 244 So. 3d 356, 361 (Fla. 1st DCA 2018).1 "A driver's license or driving privilege that does not exist cannot be canceled, suspended, or revoked." Id. The court noted that "[a] person who does not have a Florida driver's license and who does not fall within a statutory exemption to licensure does not have any driving privilege and is guilty of driving without a valid driver's license." Id. Effective October 1, 2019, the Florida Legislature amended section 322.34(2) to read: Any person whose driver license or driving privilege has been canceled, suspended, or revoked as provided by law, or who does not have a driver license or driving privilege but is under suspension or revocation equivalent status as defined in s. 322.01(41), except persons defined in s. 322.264, who, knowing of such cancellation, suspension, revocation, or suspension or revocation equivalent status, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, or while under suspension or revocation equivalent status, commits: (a) A misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. § 322.34(2), Fla. Stat. (2019) (emphasis added). 1 The version of section 322.34 at issue in Williams is identical to the version of the statute at issue in this case. 5 This legislative modification of section 322.34(2) now explicitly takes into account an individual who never had a driver's license but whose right to drive has been suspended, canceled, or revoked. However, this version of the statute was not in effect when Hodo drove the vehicle used in the drug sale in this case. At trial, the State failed to introduce any evidence that Florida, or any other state, has ever issued Hodo a driver's license. Given the supreme court's interpretation of the term "driving privilege" in Miller and the First District's holding in Williams, we conclude that Hodo was entitled to a judgment of acquittal because the version of section 322.34(2) then in effect did not apply to him. Accordingly, we reverse Hodo's conviction for driving while license canceled, suspended, or revoked. Affirmed in part and reversed in part. SLEET and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 6