Mitchell v. State

704 So. 2d 1155, 1998 Fla. App. LEXIS 904, 1998 WL 39583

Opinion

PER CURIAM.

We grant the petition for writ of certiorari. The trial court failed to instruct the jury on the essential and material element of notice on the charge of driving while license suspended (DWLS) under section 322.34, Florida Statutes (1995). See Chicone v. State, 684 So.2d 736, 745 (Fla.1996); McNeal v. State, 662 So.2d 373, 374 (Fla. 5th DCA 1995), rev. denied, 670 So.2d 940 (Fla.1996). We are unpersuaded that notice is not an essential element of DWLS where the suspension was imposed under section 322.2615, Florida Statutes (1995) (providing for license suspension based on driving with an unlawful blood-alcohol level or breath-alcohol level, or on refusing to submit to a breath, urine, or blood test). See §§ 322.251, 322.2651, Fla. Stat. (1995) (both requiring that notice of the suspension be given to the driver). We reverse the circuit court s affirmance of the judgment of conviction and sentence, and remand with direction to the circuit court to reverse the DWLS conviction and sentence, and remand to the trial court for further proceedings consistent with this opinion.

POLEN, SHAHOOD and GROSS, JJ., concur.