DEFENDANT, by and through undersigned counsel and pursuant to Rule 3.190 of the Florida Rules of Criminal Procedure, and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, and Article 1, Section 9, of the Florida Constitution, requests this Court to dismiss the offense charged in Count 1 of the State’s Information in this case.  As grounds for this motion, the Defendant states as follows:

  1. The Defendant is charged by Information in this case with Count 1 – Felony Driving While License Revoked (Habitual Offender) (F3) and Count 2 – Resisting an Officer Without Violence (M1).
  2. According to Florida Highway Patrol Trooper Rinehart’s arrest report, the Defendant was involved in a traffic accident on June 9, 2010, on I-95, 1.4 miles north of State Road 5. Following his accident investigation, Trooper Rinehart arrested the Defendant and transported him to the Brevard County Jail.  Trooper Rinehart’s report fails to explain by what authority he arrested the Defendant on the accident scene.
  3. On June 19, 2010, Trooper Rinehart issued Florida Uniform Traffic Citation #3288-CEJ charging the Defendant with Felony DWLS contrary to section 322.34(5), Florida Statutes for the incident that occurred on June 9, 2010, at 2:23 A.M.  Trooper Rinerhart’s report identified the Defendant with an alias of “Michael.”
  4. Following the above-described accident investigation, Trooper Rinehart issued Citation #3261-CEJ to the Defendant under the name “John Michael Smith”  Citation #3261-CEJ charged the Defendant with misdemeanor Driving While License Suspended or Revoked pursuant to section 322.34(2)(a), Florida Statutes.  Citation #3261-CEJ charges the Defendant with the misdemeanor DWLS that occurred on June 9, 2003 at 2:23 A.M., the same date and time alleged by Citation #3288-CEJ (Felony DWLS).
  5. On June 16, 2010, before County Court Judge XXXX, the Defendant entered a nolo contendere plea to the misdemeanor DWLS charged in Citation #3261-CEJ (Case No. 10-CT-013682-A).  The plea was accepted by the Court, adjudication was withheld and the Defendant was sentenced to 9 days incarceration with 8 days credit-time-served, 6 months of non-reporting probation, and $129.00 costs.
  6. Section 775.021(4) of the Florida Statutes (2010), codifies the Blockburger test for determining whether the principle of double jeopardy bars additional punishment and successive prosecution.  Section 775.021(4) provides in part that “offenses are separate if each offense requires proof of an element that the other does not….”
  7. The Blockburger test, or “same-elements test,” was applied to misdemeanor DWLS and felony DWLS in Janos v. State, 763 So.2d 1094 (Fla. 4th DCA 1999), wherein the District Court wrote:
    In this case, the petitioner entered a no contest plea to DWLS and was sentenced under a special procedure provided by statute.  At the same time, petitioner was charged with felony DWLS for the same offense.  Blockburger requires us to compare the two offenses in deciding if they meet the “same elements” test.  Although felony DWLS requires proof of an element that misdemeanor DWLS does not, i.e., the existence of two or more prior DWLS convictions, misdemeanor DWLS does not require proof of an element that felony DWLS does not.  See §322.34(2)(c).  In other words, there is nothing in a simple DWLS charge that does not appear in the felony charge.  Thus, under the Blockburger test and section 775.021(4)(a), these offenses are not separate and distinct offenses and prosecution for both offenses is therefore barred by double jeopardy.  763 So.2d at 1097-98.  See McManama v. State, 816 So.2d 781 (Fla. 2nd DCA 2002) (plea to misdemeanor DWLS barred later prosecution for felony DWLS arising from same traffic violation).
  8. Clearly, misdemeanor DWLS does not require proof of an element that felony DWLS does not. Thus, a conviction for DWLS in the above-styled cause would be prohibited under state and federal double jeopardy principles.

WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order dismissing the specified charge and/or charges in this case.