Paul THOMPSON, Petitioner, v. STATE of Florida, Respondent, 887 So. 2d 1260

QUINCE, J. We have for review Thompson v. State, 808 So.2d 284 (Fla. 5th DCA 2002), based on apparent conflict with the decision in Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The question presented here is the application of the punishment enhancement provisions of

section 322.34(2), Florida Statutes (Supp.1998), where the defendant’s prior driving while license suspended (DWLS) convictions occurred under an earlier version of the statute that did not require proof of knowledge as an element of the offense. For the reasons expressed below, we approve the decision in Huss and quash the decision in Thompson. Facts and Procedural History Paul Thompson pled guilty to a felony charge of knowingly driving with a license that had been suspended or revoked (felony DWLS) under

section 322.34(2)(c), Florida Statutes (Supp.1998). In a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, Thompson argued that because his two predicate DWLS convictions used to charge him with felony DWLS had occurred prior to October 1, 1997, he could only be charged with a misdemeanor. Thompson cited the First District Court of Appeal’s decision in Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000), as authority for his argument.

Thompson also argued that the trial court did not have jurisdiction to hear his case because, under Huss, his two predicate convictions were improperly used to enhance his charge to felony DWLS. Without these predicate convictions, Thompson asserted, his crime would only be a misdemeanor under the amended statute. The trial court denied Thompson’s 3.850 motion, concluding that Huss constituted a change in decisional law that should not be retroactively applied. On appeal, the Fifth District Court of Appeal also rejected Thompson’s argument regarding the retroactive application of Huss. Thompson, 808 So.2d at 285.

The Fifth District agreed with the trial court that Huss represents a change in the law, not merely a recognition of the “state of the law,” as Thompson asserted. Id. The Fifth District also concluded that the Huss ruling was not retroactive. Id. Finally, the Fifth District rejected Thompson’s assertion that the trial court was without jurisdiction to enter its judgment and characterized the argument as “ ‘clearly lacking] merit.’ ” Id. (quoting Martin v. State, 809 So.2d 65, 66 (Fla. 5th DCA 2002)). Analysis Prior to October 1, 1997,

section 322.34, Florida Statutes (1995), provided in relevant part:

(1) 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, and who 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, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The Legislature amended the statute by adding language that the driving must be done “knowing of such cancellation, suspension, or revocation,” thus adding a knowledge element to the crime. See § 322.34(2), Fla. Stat. (Supp.1998).

The amended statute also provides that a person who drives while his or her license is canceled, suspended, or revoked but does not have knowledge of the cancellation, suspension, or revocation as provided in subsection (2) is merely guilty of a moving violation. See § 322.34(1), Fla. Stat. (Supp.1998). The factual circumstances of Huss are almost identical to the instant case. See Huss, 771 So.2d at 591. William Raymond Huss was convicted of felony DWLS under the amended statute.

As in Thompson, the predicate convictions which the State relied on to enhance Huss’s offense to felony status occurred prior to the October 1, 1997, effective date of the amended statute. 771 So.2d at 592. The First District held that because Huss’s prior convictions had occurred before the statutory amendment that added the knowledge element, the convictions could not be used under the amended statute for the purposes of enhancement to felony DWLS.

The First District explained that “the law under which [the defendant] received his prior convictions is no longer in effect, and for purposes of enhancement under the new statute for multiple convictions, the statute by its plain wording applies only to a ‘conviction’ for the offense prescribed by the present statute.” Id. at 593. In a recent decision, the First District also certified conflict with the decision in Thompson on this very issue. See Stutts v. State, 821 So.2d 449 (Fla. 1st DCA 2002).

In Stutts, the First District decided that the defendant’s prior DWLS convictions in Alabama could not be the basis for an enhanced felony DWLS offense under the amended

section 322.34(2) because the Alabama statute contained no knowledge element. Id. at 450. The First District explained that its prior decision in Huss did not change the law, but merely “stated the ‘plain meaning’ of the new provision” that was created by the legislative amendment. Id. at 451. The underlying conflict between these cases is whether Huss represents a change in the decisional law of this state that should be accorded retroactive application. In Thompson, the Fifth District concluded that “Huss represents a change in the law, but the ruling is not retroactive.” 808 So.2d at 284.

In contrast, the First District characterized its decision in Huss as being based on the plain language of the applicable statute which “did not constitute a change in the decisional law of this state.” Stutts, 821 So.2d at 451. As the First District explained in Huss, “the law under which [Huss] received his prior convictions is no longer in effect, and for purposes of enhancement under the new statute for multiple convictions, the statute by its plain wording applies only to a ‘conviction’ for the offense prescribed by the present statute.” 771 So.2d at 593.

The First District also pointed out that the Legislature could have, but did not, provide for enhancement under the amended statute based on violations of the pre-amendment version of the statute. Id. An examination of this Court’s decision in Witt v. State, 387 So.2d 922 (Fla.1980), and the United States Supreme Court’s recent decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), is instructive in answering the question concerning the impact of the Huss decision.

In Witt, this Court was asked to apply a number of alleged changes in deci-sional law to a defendant’s conviction for first-degree murder and his resulting death sentence during his appeal of the denial of postconviction relief under Florida Rule of Criminal Procedure 3.850. This Court had to balance two important goals of the criminal justice system — “ensuring finality of decisions” and “ensuring fairness and uniformity in individual cases”— to determine when a subsequent change in a rule of law should be applied retroactively in the context of postconviction relief. 387 So.2d at 925.

We concluded that an alleged change of law will not be considered in a rule 3.850 proceeding unless the change: (

a) emanates from this Court or the United States Supreme Court; (

b) is constitutional in nature; and (

c) constitutes a development of fundamental significance. Id. at 931. This Court has applied the Witt analysis to a number of cases, with differing outcomes. Compare State v. Stevens, 714 So.2d 347 (Fla.1998) (determining that Court’s decision in State v. Iacovone, 660 So.2d 1371 (Fla.1995), which invalidated the statutory penalties for attempted second- and third-degree murder of a law enforcement officer, met all three prongs of Witt and should be applied retroactively) with Delgado v. State, 776 So.2d 233, 241, 241 n. 7 (Fla.2000) (concluding that Court’s

interpretation of the burglary statute did not meet the second or third prongs of the Witt test and could not be applied retroactively). Huss does not meet the first prong of the Witt test as it was not a decision of either this Court or the United States Supreme Court. Thus, the Fifth District correctly concluded that the Huss ruling was not retroactive under the Witt analysis. Thompson, 808 So.2d at 285.

Moreover, the question of retroactivity under Witt is not applicable to this case because we are examining a change in the statutory law of this state not a change in deci-sional law emanating from this Court or the United States Supreme Court. However, the question of retroac-tivity should not have ended the Fifth District’s analysis of Thompson’s postcon-viction claim. As the United States Supreme Court explained in Bunkley v.

Florida, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003), “[t]he question here is not just one of retroactivity.” Id. at 840, 123 S.Ct. 2020 (remanding for this Court to resolve separate due process question of whether defendant’s possession of pocketknife satisfied the elements of Florida’s first-degree burglary statute). Thompson’s- claim must also be evaluated in light of the due process principles set forth in Fiore. Fiore involved a Pennsylvania criminal statute that prohibited the operation of a hazardous waste facility without a permit. 531 U.S. at 226, 121 S.Ct. 712.

The Pennsylvania Supreme Court interpreted the statute for the first time after William Fiore’s conviction became final. This subsequent

interpretation made it clear that Fiore’s conduct was not within the statute’s scope". Id. After Fiore was unsuccessful in obtaining collateral relief in the state courts, he brought a federal habeas corpus action. The federal district court granted the habeas writ, but the Third Circuit Court of Appeals reversed on the basis that state courts are under no constitutional obligation to apply their decisions retroactively. Id. at 227, 121 S.Ct. 712. The United States Supreme Court granted Fiore’s petition for certiorari to determine whether his conviction was consistent with due process. Id. at 228, 121 S.Ct. 712.

In response to a certified question from the United States Supreme Court, the Pennsylvania Supreme Court specified that its

interpretation of the statute “did not announce a new rule of law,” but “merely clarified the plain language of the statute” and furnished a “proper statement of law” in Pennsylvania at the time of Fiore’s conviction. Id. at 228, 121 S.Ct. 712. Because the statutory

interpretation “was not new -law,” the United States Supreme Court concluded that the case “presents no issue of retroactivity.” Id. However, the Supreme Court further concluded that Fiore’s conviction and continued incarceration violated due process because the Commonwealth of Pennsylvania presented no evidence of the basic element of failure to possess a permit. Id. at 229, 121 S.Ct. 712. In determining how the Fiore due process principles apply, we must consider the nature of the “change in the law” at issue here. The Legislature amended

section 322.34 in 1997 to include a knowledge element. Prior to the 1997 amendment, an individual who drove a vehicle while his or her driver’s license was canceled, suspended, or revoked, without regard to the individual’s knowledge of the cancellation, suspension, or revocation, was guilty of a second-degree misdemeanor upon a first conviction, a first-degree misdemeanor upon a second conviction, and a third-degree felony upon a third or subsequent conviction. See § 322.34(1), Fla. Stat. (1995).

Thus, a conviction under the pre-1997 statute required no proof of knowledge as this was not an element of the offense. After the 1997 amendment took effect on October 1, 1997, operation of a vehicle with a canceled, suspended, or revoked license where there is no knowledge of the cancellation, suspension, or revocation is a moving violation. See § 322.34(1), Fla. Stat. (Supp.1998). Operation of a vehicle with knowledge that the driver’s license has been canceled, suspended, or revoked is subject to progressively more harsh punishment for repeated violations. See id. § 322.24(2).

Thompson pled guilty to the felony charge of knowingly driving while his license was suspended or revoked in violation of

section 322.34(2)(c), Florida Statutes (Supp.1998). Under this subsection, an individual who is convicted for a third or subsequent time of driving with a canceled, suspended, or revoked driving license when the individual has knowledge of the cancellation, suspension, or revocation is guilty of a third-degree felony. In Huss, the First District explained that DWLS convictions under the previous statute, which did not contain a knowledge element, do not qualify as prior convictions under the current amended statute, which contains knowledge as an element of the DWLS offense. Huss, 771 So.2d at 592-93.

If that is the case, Thompson pled to an offense for which the State could not demonstrate all of the elements, i.e., two prior convictions of DWLS with knowledge that the license was canceled, suspended, or revoked. At the time Thompson entered his plea, no court had interpreted this new statutory provision.

The post-amendment statute provides that knowledge of the cancellation, suspension, or revocation element can be satisfied if the person has been cited previously under subsection (1); admits to knowledge of the cancellation, suspension, or revocation; or received knowledge of the cancellation, suspension, or revocation via a judgment, order, or uniform traffic citation as provided in subsection (4). § 322.34(2), Fla. Stat. (Supp.1998). The trial court may also consider any evidence not mentioned in subsection (2) which would show that the person knowingly violated the statute. Id. § 322.34(3).

However, as the First District opined, while “[t]he current statute sets forth three methods of establishing ‘knowledge,’ ... [it] cannot be read as providing a method of supplying the missing knowledge element with respect to earlier convictions.” Huss, 771 So.2d at 593 n. 1. Further, “[ajlthough the legislature might have done so, no provision was made in the 1997 law for enhancement based on convictions under the prior statute.” Id. at 593. “A conviction establishes only the elements of the crime, and does not include underlying facts or conduct which are not elements of the offense.” Dautel v.

State, 658 So.2d 88, 90 (Fla.1995) (emphasis added) (holding that trial court may not consider underlying facts in determining whether out-of-state conviction is analogous to Florida statute for the purpose of calculating points for sentencing guidelines scoresheet). Because Thompson’s predicate convictions occurred under the previous statute, which did not include knowledge as an essential element of the offense, the State did not prove knowledge in his previous convictions.

Consequently, Thompson’s previous convictions do not qualify as predicate convictions of the offense proscribed by the current statute, i.e., driving with knowledge of the cancellation, suspension, or revocation of one’s driving license. As the Supreme Court explained in Fiore, “the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt.” 531 U.S. at 228-29, 121 S.Ct. 712. Here, the State did not and could not prove that Thompson had three previous convictions for the offense proscribed by

section 322.34(2), driving with knowledge that his license had been canceled, suspended, or revoked. Thus, Thompson’s conviction fails to satisfy federal constitutional due process and his felony conviction must be reversed. However, as in Huss, judgment and conviction may be entered against Thompson pursuant to

section 322.34(2)(a), Florida Statutes (Supp.1998). For the reasons discussed above, we quash the Fifth District’s decision in Thompson and approve the First District’s decision in Huss. We remand this case to the Fifth District for proceedings consistent with this opinion. It is so ordered. PARIENTE, C.J., and LEWIS and CANTERO, JJ., concur. WELLS, J., concurs in result only with an opinion. ANSTEAD and BELL, JJ., concur in result only. . The statute was amended by the Legislature to include a knowledge element that was not an element of the previous offense of felony driving with a suspended or revoked license.

Compare § 322.34(2)(c), Fla. Stat. (Supp. 1998) with § 322.34(1), Fla. Stat. (1995). The amended statute became effective on October 1, 1997. See ch. 97-300, §§ 40, 54, Laws of Fla. .As amended by the Legislature,

section 322.34(2) 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 tiny 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, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 322.34(2), Fla. Stat. (Supp.1998) (emphasis added). .

Section 322.34(1), Florida Statutes (Supp. 1998), states as follows:

(1) Except as provided in subsection (2), any person whose driver's license or driving privilege has been canceled, suspended, or revoked ... who drives a vehicle upon the highways of this state ... is guilty of a moving violation.... . We recognize that the procedural posture of the two cases is not the same. Huss involved a direct appeal of the conviction, while Thompson involved an appeal of the trial court's denial of postconviction relief. Compare Huss, 771 So.2d at 591-93 with Thompson, 808 So.2d at 285. .

Under the amended statute, a person who drives a vehicle while his or her driver’s license is canceled, suspended, or revoked and who knows of the cancellation, suspension, or revocation is guilty of a second-degree misdemeanor upon a first conviction of this offense, a first-degree misdemeanor upon a second conviction, and a third-degree felony upon a third or subsequent conviction. See § 322.34(2), Fla. Stat. (Supp.1998). . Nor does the amended statute provide for the use of these pre-amendment convictions at all in enhancing punishment. Huss, 771 So.2d at 593 n. 1. .

Under the current statute, "[t]he element of knowledge is satisfied if the person has been previously cited as provided in subsection (1),” that is, driving with a canceled, suspended, or revoked driver's license without proof of knowledge of the cancellation, suspension, or revocation of the driver's license. See § 322.34(2), Fla. Stat. (Supp.1998). Thompson’s previous convictions under the pre-amendment statute satisfy this criteria. Thompson's conviction under the amended statute meets the requirements of

section 322.34(2)(a), in that his previous convictions without proof of knowledge satisfy the knowledge element required for the current conviction. Thus, Thompson can be adjudged guilty of a misdemeanor of the second degree, as provided in

section 322.34(2)(a).