5D09-4088 Marshall Vaughan v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-4088

Case Date: 03/01/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

MARSHALL VAUGHAN, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed March 5, 2010 3.850 Appeal from the Circuit Court for Citrus County, Richard Howard, Judge. Marshall S. Vaughan, Carrabelle, pro se. Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D09-4088

ORFINGER, J. ON MOTION FOR REHEARING

We grant Appellant's motion for rehearing, withdraw our earlier opinion in this case and substitute the following in its place. Marshall S. Vaughan appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He claims that his trial counsel was ineffective for allowing him to plead no contest to felony

driving while license suspended as he did not have the requisite prior convictions to enhance his latest offense to a felony. We reverse. In Citrus County Circuit Court case number 08-CF-654, Vaughan was charged with, and ultimately pled no contest to, numerous offenses, one of which was felony driving while license suspended, a violation of section 322.34(2)(c), Florida Statutes (2008). That statute provides in pertinent part: (2) Any person whose driver's license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon: ... (c) A third or subsequent conviction is guilty of a felony of the third degree . . . . (emphasis added). The statute also provides that a person who drives while his or her license is cancelled, suspended or revoked, without knowledge of the cancellation, suspension or revocation, is guilty only of a moving violation, not a criminal offense. See

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