Whipple v. State

789 So. 2d 1132, 2001 WL 716760
CourtDistrict Court of Appeal of Florida
DecidedJune 27, 2001
Docket4D00-1221
StatusPublished
Cited by11 cases

This text of 789 So. 2d 1132 (Whipple v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whipple v. State, 789 So. 2d 1132, 2001 WL 716760 (Fla. Ct. App. 2001).

Opinion

789 So.2d 1132 (2001)

Bradley WHIPPLE, Appellant,
v.
STATE of Florida, Appellee.

No. 4D00-1221.

District Court of Appeal of Florida, Fourth District.

June 27, 2001.
Rehearing Denied August 7, 2001.

*1133 Richard W. Springer of Springer & Springer, Palm Springs, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melanie Ann Dale, Assistant Attorney General, West Palm Beach, for appellee.

*1134 SHAHOOD, J.

We reverse the court's denial of his motion to withdraw plea and hold that the trial court erred in permanently revoking appellant's driver's license.

Appellant was charged by Information with DUI with serious bodily injury (count I); DUI with injury to property or person (count II); and no valid driver's license causing serious bodily injury (count III). The Information alleged that on January 28, 1999, while driving under the influence of alcohol, appellant inflicted serious bodily injury to Elaine Girgis and caused property damage to the Academy for Little People.

On June 17, 1999, appellant entered a plea of guilty in open court. Prior to accepting his plea, upon inquiry by the court, appellant stated that he was entering the plea of his own free will. The court explained that if it accepted his plea, he would be doing so without any guarantee as to the sentence he would receive and that he could be sentenced within the guidelines between 55 months and 11 years in prison. Appellant replied that he understood. After establishing a factual basis for the plea, the court accepted appellant's guilty plea and noted that the plea was freely and voluntarily entered into and that appellant had full knowledge of the possible consequences.

At the July 20, 1999, sentencing hearing, the trial court reviewed the PSI, heard from the victim, and reviewed the guidelines scoresheet. At the time of the accident, appellant had a .26 percent alcohol blood draw and had a prior DUI conviction. The state recommended that the court impose a sentence that sends "a clear and convincing statement to Mr. Whipple" that what he did was wrong. The victim and her family wanted a below guidelines sentence for appellant because they were concerned that if appellant was incarcerated, he would not be able to work, and therefore, would be unable to make restitution.

The trial judge inquired as to the mandatory conditions which must be imposed by statute and the state stated that the court would have to suspend appellant's license for at least a year. The court sentenced appellant on count I to 60 months in the Department of Corrections with credit for time served. On counts II and III, appellant was sentenced to five years probation, consecutive to his term of incarceration. The court required that appellant receive alcohol treatment while incarcerated and permanently revoked appellant's driver's license.

Appellant filed a motion to withdraw his plea and argued that the trial court erred in permanently revoking his driver's license on the grounds that he had only one prior DUI (November 7, 1997). He claimed that the PSI incorrectly reflected a DUI conviction on May 27, 1993. The charge stemming from that 1993 incident resulted in a reckless driving charge and the DUI was nolle prossed. Appellant argued that only one of the two DUI's in the present case could be counted for suspension purposes, and thus, he did not qualify for a lifetime suspension under section 322.28(2)(a)3. Next, he claimed that he was not informed that he was eligible for a permanent revocation of his driver's license by his former attorney. Rather, he claimed his former attorney told him that he could be suspended for no more than five years. Lastly, he claimed that the trial court erred in assessing victim injury points.

At the hearing on the motion to withdraw plea, appellant's former attorney, Gerald Salerno, testified that he was surprised by the lifetime driver's license suspension because he did not believe that section 322.28 called for a lifetime suspension. Salerno had no recollection of seeing *1135 any authority presented to him by the state authorizing such a suspension. Salerno never discussed a lifetime suspension with appellant because he didn't think it was a possibility. Appellant understood that a driver's license suspension was inevitable as a result of entering a plea. Salerno said they discussed a driver's license suspension, but he could not recall whether he told appellant about a five or ten year suspension. On cross-examination, Salerno denied advising appellant that his driver's license could be suspended for no more than five years. Rather, he claimed he told appellant that a ten-year suspension was the maximum he could receive.

Appellant testified that prior to entering his plea, Salerno advised him that his license would be suspended for five years. Appellant claimed that he would not have entered a guilty plea had he known that his license could be suspended for more than five years.

In its order denying appellant's motion to withdraw plea, the court held that section 316.655 empowered the court to suspend or terminate driving privileges if warranted under the facts and circumstances of the case. Thus, it was not bound by section 322.28, as argued by appellant. The court held that a permanent revocation of appellant's driver's license was warranted under the facts of this case and because it was appellant's third DUI. The court also held that Salerno did not affirmatively mislead or erroneously advise appellant as to the maximum possible length of suspension. Lastly, the court held that there was no error in the assessment of victim injury points.

We reverse, finding error in the permanent revocation of appellant's driver's license and in the denial of appellant's motion to withdraw plea based on the misadvice of counsel. The trial court erroneously revoked appellant's driving privileges pursuant to section 316.655, Florida Statutes (1999). Rather, it was bound by section 322.28, Florida Statutes (1999).

Appellant was convicted under section 316.193(3)(c)2, a third degree felony, for DUI with serious bodily injury and had only one prior DUI conviction. The pertinent provisions of section 322.28 provide:

(2) In a prosecution for a violation of s. 316.193 or former s. 316.1931, the following provisions apply.
(a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver's license or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions:
1. Upon a first conviction for a violation of the provisions of s. 316.193, except a violation resulting in death, the driver's license or driving privilege shall be revoked for not less than 180 days or more than 1 year.
2. Upon a second conviction within a period of 5 years from the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver's license or driving privilege shall be revoked for not less than 5 years.
3. Upon a third conviction within a period of 10 years from the date of conviction of the first of three or more convictions for the violation of the provision of s. 316.193 or former 316.1931 or a combination of such sections, the driver's license or driving privilege shall be revoked for not less than 10 years.
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Cite This Page — Counsel Stack

Bluebook (online)
789 So. 2d 1132, 2001 WL 716760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whipple-v-state-fladistctapp-2001.