Bolware v. State

995 So.2d 268

Demello BOLWARE, Petitioner, v. STATE of Florida, Respondent.

No. SC04-12.

Supreme Court of Florida.

September 18, 2008.

Rehearing Denied November 20, 2008.

Jeffrey P. Whitton, Panama City, FL, for Petitioner.

Bill McCollum, Attorney General, Robert R. Wheeler, Assistant Attorney General, Bureau Chief, and Edward C. Hill, Jr., Special Assistant Attorney General, Criminal Appeals, Tallahassee, FL, for Respondent.

PER CURIAM.

Demello Bolware seeks review of the decision of the First District Court of Appeal in State v. Bolware, ___ So.2d ___, 28 Fla. L. Weekly D2493, 2003 WL 22460271 (Fla. 1st DCA Oct. 31, 2003), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS AND PROCEDURAL HISTORY

On February 13, 2001, Bolware pled no contest to the charge of driving while license suspended or revoked (DWLSR). Following this plea, the trial court sentenced the defendant to pay a fine of $253. On August 24, 2001, the Department of Highway Safety and Motor Vehicles (the Department) determined that following his DWLSR plea, Bolware was a habitual traffic offender and thus revoked his driver's license for five years pursuant to section 322.27(5), Florida Statutes (2001).¹ On November 20, 2001, Bolware filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 with the county court, arguing: "The conviction under attack was based on a plea that was not made voluntarily with understanding of the nature of the charge and the consequence of the plea, and thus did not meet the requirements of Florida Rule of Criminal Procedure 3.172." The motion further set forth: "The defendant was not advised of the full consequences of his plea. He was never advised by the public defender at the time of, or immediately prior to, entry of the plea that he would be classified as a habitual traffic offender or that his license would be revoked for a period of five (5) years."

The Bay County Court held an evidentiary hearing on December 18, 2001, at which the defendant testified that his trial counsel did not inform him at the time that his license would be revoked or suspended as a result of his plea and that, had he known, he would not have pled no contest. On January 3, 2002, the court denied Bolware's motion, finding that the revocation by the Department was a collateral consequence and that there was thus "no duty imposed upon the court or the defendant's trial attorney to warn him of such collateral consequences."

Bolware appealed to the circuit court. On September 11, 2002, the circuit court reversed the county court's order, holding that a statutorily mandated suspension or revocation of a driver's license is a direct consequence of a plea. The court also held that the failure of defense counsel to advise the defendant of this consequence rendered counsel ineffective.

The State petitioned for a writ of certiorari to the First District Court of Appeal on October 4, 2002. The First District granted certiorari, finding that the circuit court departed from the essential requirements of law in holding that the revocation was a direct consequence of the plea. Bolware, ___ So.2d at ___, 28 Fla. L. Weekly at D2494. The First District determined that the circuit court failed to recognize prior case law of this Court, which held that revocation of a driver's license is not a punishment but rather an administrative remedy. Id. Because this Court had previously held that license revocation was not punishment and that a defendant must only be informed of the "direct consequences" of a plea, which are those that have a "definite, immediate, and largely automatic effect on the range of the defendant's punishment," the court concluded that the trial court and defense counsel were not required to advise Bolware of the possibility of license revocation in order for the plea to be voluntary. Id.

Bolware sought review of the First District's decision in this Court on the basis of its conflict with Daniels v. State, 716 So.2d 827 (Fla. 4th DCA 1998), Whipple v. State, 789 So.2d 1132 (Fla. 4th DCA 2001), disapproved of on other grounds by Stoletz v. State, 875 So.2d 572 (Fla.2004), and Prianti v. State, 819 So.2d 231 (Fla. 4th DCA 2002). In Daniels, the defendant pled nolo contendere to charges of possession of cocaine and marijuana, and the trial court revoked his driver's license pursuant to section 322.055(1), Florida Statutes (1997).² 716 So.2d at 828. Daniels moved to withdraw his plea, arguing that because neither the trial court nor defense counsel had advised him that his license could be revoked, his plea was not voluntary under Florida Rule of Criminal Procedure 3.170(k). Daniels, 716 So.2d at 828. The Fourth District held that the defendant was entitled to withdraw his plea because the revocation was definite, immediate, and automatic, and thus was a direct consequence of which the defendant should have been advised for his plea to be voluntary. Id. at 829. The Fourth District has since restated this holding in other cases concerning the suspension and revocation of a driver's license under section 322.28, Florida Statutes. See Nordelus v. State, 889 So.2d 910, 911 (Fla. 4th DCA 2004) (revocation of license following plea to charge of DUI manslaughter is direct consequence because the statute requires the court to revoke the defendant's driver's license upon conviction); Prianti, 819 So.2d at 232 (mandatory two-year revocation of license is direct consequence of plea); Whipple, 789 So.2d at 1138 (lifetime revocation of license is direct consequence of plea); but see Sullens v. State, 889 So.2d 912 (Fla. 5th DCA 2004) (following the First District's decision in Bolware and holding a defendant need not be informed of possibility of license revocation because it is not punishment and therefore not a direct consequence of a plea); State v. Caswell, ___ So.2d ___, 28 Fla. L. Weekly D2492, 2003 WL 22460275 (Fla. 1st DCA Oct.31, 2003) (holding a defendant need not be informed of possibility of license revocation because it is not punishment and therefore not a direct consequence of a plea).

We accepted jurisdiction in this case to resolve the following conflict issue among the district courts: Whether the suspension or revocation of a driver's license is a direct consequence when it results from a guilty or no contest plea, for which the defendant must be informed to ensure that the plea is voluntary.³ As we discuss in more detail below, we decide this issue in the negative. We begin by addressing the differences between "direct" and "collateral" consequences, as those terms have been defined by this Court and the United States Supreme Court. We then address why license revocation does not constitute "punishment" under our precedent. Finally, we will explain how the consequence in this case, mandatory license revocation, was not "immediate" as that term has been previously defined.

I. DIRECT CONSEQUENCES

We have previously held that the trial court must inform a defendant of the direct, but not the collateral, consequences of a plea. See Major v. State, 814 So.2d 424, 426-27 (Fla.2002); State v. Ginebra, 511 So.2d 960, 961 (Fla.1987). The reason a defendant must be informed of the "direct consequences" of a guilty plea is to ensure that a plea is voluntarily and intelligently made under the Due Process Clause of the Fifth Amendment. See Major, 814 So.2d at 427 (citing Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)). As the United States Supreme Court explained in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969):

A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.

Id. at 466, 89 S.Ct. 1166 (footnotes omitted).

The question of what constitutes a direct consequence has therefore been heavily litigated. In Ginebra, we stated that "[t]he trial judge's obligation to ensure that the defendant understands the direct consequences of his plea has been consistently interpreted to encompass only those consequences of the sentence which the trial court can impose." 511 So.2d at 961. Thus, we clearly linked direct consequences to the criminal punishment imposed. In Major, we made this explicit: "The distinction between `direct' and `collateral' consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." 814 So.2d at 431 (emphasis added) (quoting Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982)). A year later, we reiterated that a "direct consequence must affect the range of punishment in a definite, immediate, and largely automatic way." State v. Partlow, 840 So.2d 1040, 1043 (Fla.2003) (emphasis added). We have therefore clearly held that, for a penalty to be deemed a direct consequence of a plea, it must constitute punishment. Otherwise, it could not affect the range of punishment.

In several cases, we have held that various consequences of a plea, while undoubtedly serious, are nevertheless collateral to it, and...