Who Has the Discretion to Make the Defendant's Conduct a Felony or Misdemeanor Legislature or Court ?
In State v. Gloster, 703 So. 2d 1174 (Fla. 1st DCA 1997), the defendant heavily relied upon the decision in State v. Santiago, 4 Fla. L. Weekly Supp. 220, 221 (Fla. 17th Cir. Ct. Aug. 2, 1996), reversed, 713 So. 2d 1127 (Fla. 4th DCA 1998), wherein the circuit court held section 322.34(1) to be unconstitutional. See Gloster, 703 So. 2d at 1175.
In State v. Santiago, 713 So. 2d 1127 (Fla. 4th DCA 1998), the circuit court reasoned:
Because [section 322.34(1)(c)] requires an adjudication of guilt for the conduct to be punishable as a felony, and because 948.01, Fla. Stat., allows this Court to withhold adjudication of guilt, this Court has the unbridled discretion to make the Defendant's conduct a felony or a misdemeanor by simply exercising its discretion regarding the withholding of adjudication of guilt.
The Legislature has the sole authority and responsibility to make the criminal laws, including classifying transgressions of the criminal law as either a felony or a misdemeanor.
It is an unconstitutional delegation of the legislative power to grant to this Court the power to make the Defendant's conduct punishable as a felony or a misdemeanor by this Court exercising its discretion to withhold adjudication of guilt.
The First District found the circuit court's reasoning in Santiago to be flawed because it assumed that "by withholding adjudication in a case where a defendant is charged with a violation of section 322.34(1)(c), the result will be that the defendant's conduct will be treated as a misdemeanor, rather than a felony." Gloster, 703 So. 2d at 1175.
The First District analyzed section 948.01(2), Florida Statutes, which authorizes a court to withhold an adjudication of guilt, and noted that a withhold of adjudication is permitted only if the defendant is placed on probation. See Gloster, 703 So. 2d at 1176 (citing Florida Rule of Criminal Procedure 3.670).
Based on the interaction between a withhold of adjudication and placement of the defendant on probation, the First District concluded:
Pursuant to this statutory scheme, a defendant who has adjudication of guilt withheld and successfully completes the term of probation imposed "is not a convicted person." Thomas v. State, 356 So. 2d 846, 847 (Fla. 4th DCA), cert. denied, 361 So. 2d 835 (Fla. 1978).
However, if probation is revoked, the defendant must be adjudicated guilty of the charged offense. 948.06(1), Fla. Stat. (1995).
Applying the foregoing statutory scheme to the issue at hand, it becomes apparent that there are two possible alternatives when one charged with a violation of section 322.34(1)(c) has adjudication of guilt withheld and is placed on probation--either the term of probation will be successfully completed, in which event the defendant will not have been convicted at all; or probation will be revoked, in which case the defendant must be adjudicated guilty of a violation of section 322.34(1)(c), and sentenced accordingly.
Treating the charge as a misdemeanor (as Santiago suggests) is simply not an available alternative.
Thus, it is clear that section 322.34(1)(c) does not have the effect ascribed to it in Santiago, and by the trial court below; and, therefore, does not involve an unconstitutional delegation of legislative power to the judiciary. See Raulerson v. State, 699 So. 2d 339 (Fla. 5th DCA 1997) (rejecting, on somewhat different grounds, the contention that section 322.34(1)(c) involves an unconstitutional delegation of legislative power to trial courts). Gloster, 703 So. 2d at 1176.