5D04-349 Dept. of Hwy v. Brandenburg A

State: Florida

Court: Florida Southern District Court

Docket No: 5D04-349.op.corr

Case Date: 11/29/2004

Plaintiff: 5D04-349 Dept. of Hwy

Defendant: Brandenburg corrected January 28, 1005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. CASE NO. 5D04-349 CORRECTED

DEBROAH BRANDENBURG, Appellee. ______________________________/ Opinion filed December 3, 2004 9.160 Appeal from the County Court for Hernando County, Peyton Hyslop, Judge. Enoch J. Whitney, General Counsel, and Jason Helfant, Assistant General Counsel, Miami, for Appellant. No Appearance for Appellee. SHARP, W., J. The Department of Highway Safety and Motor Vehicles appeals from an order of the county court whichrequired the Department to revoke Deborah Brandenburg's driver's license, effective nunc pro tunc, to a date different than that of her conviction for DUI, pursuant to section 316.193. The court also certified the following questions as being ones of great public importance: DOES THE REVOCATION OF A DEFENDANT'S DRIVER'S LICENSE PURSUANT TO FLORIDA STATUTE 322.28(1)(a)(1)

FROM THE DATE OF CONVICTION AS PART OF A SENTENCE VIOLATE EQUAL PROTECTION OR DUE PROCESS LAWS OR DOUBLE JEOPARDY OR THE SEPARATION OF POWERS UNDER THE STATE AND FEDERAL CONSTITUTIONS WHEREIN THE DEFENDANT HAS ALREADY SERVED A DRIVER'S LICENSE SUSPENSION AS A RESULT OF HER ARREST FOR DUI PURSUANT TO FLORIDA STATUTE 322.2615 PRIOR TO TRIAL? We accepted discretionary jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160. We answer the question as to double jeopardy as "no" and decline to address issues concerning equal protection, due process and separation of powers because they were not argued to the county court and they are not fully briefed on appeal.1 In addition, the appellee, Brandenburg, has elected not to file a brief in this cause. We reverse the county court's requirement that the period of revocation run nunc pro tunc to a date other than the date of Brandenburg's conviction. The facts in this case are not in dispute. Brandenburg was arrested on November 5, 2002 for driving under the influence of alcohol or drugs.2 It was her first offense for DUI. The arresting officer suspended her license for 180 days, pursuant to section 322.2615(1)(a). The statute provides: A law enforcement officer or correctional officer shall, on behalf of the Department, suspend the driving privilege of a person who has been arrested by a law enforcement officer for a violationof s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level,...

See Chaachou v. Chaachou, 135 So. 2d 206 (Fla. 1961); McKinzie v. State, 845 So. 2d 316 (Fla. 1 DCA 2003); State v. Schell, 211 So. 2d 581 (Fla. 2d DCA 1968); Weisman v. Weisman, 141 So. 2d 622 (Fla. 3d DCA 1962)(deemed waived).
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