Demello BOLWARE, Petitioner, v. STATE of Florida, Respondent, 995 So. 2d 268

PER CURIAM. Demello Bolware seeks review of the decision of the First District Court of Appeal in State v. Bolware, — So.2d-, 28 Fla. L. Weekly D2493, 2003 WL 22460271 (Fla. 1st DCA Oct. 31, 2003), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. FACTS AND PROCEDURAL HISTORY On February 13, 2001, Bolware pled no contest to the charge of driving while license suspended or revoked (DWLSR). Following this plea, the trial court sentenced the defendant to pay a fine of $253.

On August 24, 2001, the Department of Highway Safety and Motor Vehicles (the Department) determined that following his DWLSR plea, Bolware was a habitual traffic offender and thus revoked his driver’s license for five years pursuant to

section 322.27(5), Florida Statutes (2001). On November 20, 2001, Bolware filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 with the county court, arguing: “The conviction under attack was based on a plea that was not made voluntarily with understanding of the nature of the charge and the consequence of the plea, and thus did not meet the requirements of Florida Rule of Criminal Procedure 3.172.” The motion further set forth: “The defendant was not advised of the full consequences of his plea.

He was never advised by the public defender at the time of, or immediately prior to, entry of the plea that he would be classified as a habitual traffic offender or that his license would be revoked for a period of five (5) years.” The Bay County Court held an eviden-tiary hearing on December 18, 2001, at which the defendant testified that his trial counsel did not inform him at the time that his license would be revoked or suspended as a result of his plea and that, had he known, he would not have pled no contest.

On January 3, 2002, the court denied Bol-ware’s motion, finding that the revocation by the Department was a collateral consequence and that there was thus “no duty imposed upon the court or the defendant’s trial attorney to warn him of such collateral consequences.” Bolware appealed to the circuit court. On September 11, 2002, the circuit court reversed the county court’s order, holding that a statutorily mandated suspension or revocation of a driver’s license is a direct consequence of a plea.

The court also held that the failure of defense counsel to advise the defendant of this consequence rendered counsel ineffective. The State petitioned for a writ of certio-rari to the First District Court of Appeal on October 4, 2002. The First District granted certiorari, finding that the circuit court departed from the essential requirements of law in holding that the revocation was a direct consequence of the plea. Bol-ware, — So.2d at-, 28 Fla. L. Weekly at D2494.

The First District determined that the circuit court failed to recognize prior case law of this Court, which held that revocation of a driver’s license is not a punishment but rather an administrative remedy. Id.

Because this Court had previously held that license revocation was not punishment and that a defendant must only be informed of the “direct consequences” of a plea, which are those that have a “definite, immediate, and largely automatic effect on the range of the defendant’s punishment,” the court concluded that the trial court and defense counsel were not required to advise Bolware of the possibility of license revocation in order for the plea to be voluntary. Id. Bolware sought review of the First District’s decision in this Court on the basis of its conflict with Daniels v.

State, 716 So.2d 827 (Fla. 4th DCA 1998), Whipple v. State, 789 So.2d 1132 (Fla. 4th DCA 2001), disapproved of on other grounds by Stoletz v. State, 875 So.2d 572 (Fla.2004), and Prianti v. State, 819 So.2d 231 (Fla. 4th DCA 2002). In Daniels, the defendant pled nolo contendere to charges of possession of cocaine and marijuana, and the trial court revoked his driver’s license pursuant to

section 322.055(1), Florida Statutes (1997). 716 So.2d at 828. Daniels moved to withdraw his plea, arguing that because neither the trial court nor defense counsel had advised him that his license could be revoked, his plea was not voluntary under Florida Rule of Criminal Procedure 3.170(k). Daniels, 716 So.2d at 828. The Fourth District held that the defendant was entitled to withdraw his plea because the revocation was definite, immediate, and automatic, and thus was a direct consequence of which the defendant should have been advised for his plea to be voluntary. Id. at 829.

The Fourth District has since restated this holding in other cases concerning the suspension and revocation of a driver’s license under

section 322.28, Florida Statutes. See Nordelus v. State, 889 So.2d 910, 911 (Fla. 4th DCA 2004) (revocation of license following plea to charge of DUI manslaughter is direct consequence because the statute requires the court to revoke the defendant’s driver’s license upon conviction); Prianti, 819 So.2d at 232 (mandatory two-year revocation of license is direct consequence of plea); Whipple, 789 So.2d at 1138 (lifetime revocation of license is direct consequence of plea); but see Sullens v.

State, 889 So.2d 912 (Fla. 5th DCA 2004) (following the First District’s decision in Bolware and holding a defendant need not be informed of possibility of license revocation because it is not punishment and therefore not a direct consequence of a plea); State v. Caswell, — So.2d-, 28 Fla. L. Weekly D2492, 2003 WL 22460275 (Fla. 1st DCA Oct.31, 2003) (holding a defendant need not be informed of possibility of license revocation because it is not punishment and therefore not a direct consequence of a plea).

We accepted jurisdiction in this case to resolve the following conflict issue among the district courts: Whether the suspension or revocation of a driver’s license is a direct consequence when it results from a guilty or no contest plea, for which the defendant must be informed to ensure that the plea is voluntary. As we discuss in more detail below, we decide this issue in the negative. We begin by addressing the differences between “direct” and “collateral” consequences, as those terms have been defined by this Court and the United States Supreme Court.

We then address why license revocation does not constitute “punishment” under our precedent. Finally, we will explain how the consequence in this case, mandatory license revocation, was not “immediate” as that term has been previously defined. I. DIRECT CONSEQUENCES We have previously held that the trial court must inform a defendant of the direct, but not the collateral, consequences of a plea. See Major v. State, 814 So.2d 424, 426-27 (Fla.2002); State v. Ginebra, 511 So.2d 960, 961 (Fla.1987).

The reason a defendant must be informed of the “direct consequences” of a guilty plea is to ensure that a plea is voluntarily and intelligently made under the Due Process Clause of the Fifth Amendment. See Major, 814 So.2d at 427 (citing Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)). As the United States Supreme Court explained in McCarthy v.

United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969): A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. Id. at 466, 89 S.Ct. 1166 (footnotes omitted). The question of what constitutes a direct consequence has therefore been heavily litigated.

In Ginebra, we stated that “[t]he trial judge’s obligation to ensure that the defendant understands the direct consequences of his plea has been consistently interpreted to encompass only those consequences of the sentence which the trial court can impose.” 511 So.2d at 961. Thus, we clearly linked direct consequences to the criminal punishment imposed.

In Major, we made this explicit: “The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” 814 So.2d at 431 (emphasis added) (quoting Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982)). A year later, we reiterated that a “direct consequence must affect the range of punishment in a definite, immediate, and largely automatic way.” State v. Partlow, 840 So.2d 1040, 1043 (Fla.2003) (emphasis added).

We have therefore clearly held that, for a penalty to be deemed a direct consequence of a plea, it must constitute punishment. Otherwise, it could not affect the range of punishment. In several cases, we have held that various consequences of a plea, while undoubtedly serious, are nevertheless collateral to it, and thus a defendant need not be informed about them.

See, e.g., Major, 814 So.2d at 431 (holding that the potential for the conviction to be used to enhance the sentence of a future crime was collateral); Ginebra, 511 So.2d at 960 (holding that deportation, which “may, in fact, be a much more severe sanction than the prison sentence actually imposed on a defendant,” nevertheless was a collateral consequence); see also State v.

Harris, 881 So.2d 1079, 1084-85 & n. 5 (Fla.2004) (acknowledging the Court’s previous holding that the involuntary civil commitment of sexually violent predators under the Jimmy Ryce Act is not punishment, but referring for an amendment to Florida Rule of Criminal Procedure 3.172 to require that a defendant be informed of this potential consequence). In fact, we have held that even the onerous registration requirements of the sexual offender statute are collateral consequences. In Partlow, we explained that the sexual offender registration requirement “is not punishment at all.” 840 So.2d at 1043.

Yet these requirements impose significant burdens. To many, these requirements and restrictions may be much more onerous than the revocation of a driver’s license. But because they do not constitute punishment, we have deemed them a collateral consequence. Our prior cases demonstrate that neither the seriousness of the sanction nor its burden on the defendant affects the inquiry. If the consequence has “a definite, immediate and largely automatic effect on the range of the defendant’s punishment,” then it is direct. Major, 814 So.2d at 431 (quoting Major v.

State, 790 So.2d 550, 551 (Fla. 3d DCA 2001), approved, 814 So.2d 424 (Fla.2002)). However, if the consequence does not affect the range of punishment, it is collateral to the plea. See id. As we will now discuss, because we have consistently held that driver’s license revocation is not punishment, it cannot constitute a direct consequence. II. LICENSE REVOCATION IS NOT PUNISHMENT Historically, Florida courts have viewed a license to drive on our state roads as a privilege, not a right. See Thornhill v.

Kirkman, 62 So.2d 740, 742 (Fla.1953) (“We think there is ample warrant for the legislature to treat a driver’s license as privilege, subject to suspension or revocation for cause.”); Smith v. City of Gainesville, 93 So.2d 105, 106 (Fla.1957) (“In [:Thornhill ], we aligned ourselves with those authorities which hold that a driver’s license is a privilege, subject to proper regulations.”); City of Miami v. Aronovitz, 114 So.2d 784, 787 (Fla.1959) (“The owner of such a license exercises the privilege granted by it subject to reasonable regulations in the use of the highways common to all citizens.”).

Over fifty years ago, we considered whether license revocation constitutes punishment. See Smith, 93 So.2d at 105. We held it did not. After noting that a “driver’s license is a privilege” and is subject to regulations to protect the public, we explained: It is this aspect of protecting the public, rather than as punishment for the offender, that courts have unanimously recognized as justification for revoking drivers’ licenses upon conviction of certain offenses. True the recalcitrant law violator might feel the pain of the loss of a valuable privilege.

However, the imposition of pain is not the objective of this law. On the contrary, its primary purpose is to relieve the public generally of the sometimes death-dealing pain recklessly produced by one who so lightly regards his licensed privilege.

Id. at 106-07 (emphasis added); see also Aronovitz, 114 So.2d at 787 (“We have expressly decided that the requirement of obtaining a driver’s license and the exercise of the privilege of driving over the public highways, together with the correlative loss of the privilege under certain conditions, is a reasonable regulation of an individual right in the interest of the public good.”); cf. United States v.

Lovett, 328 U.S. 303, 324, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946) (Frankfurter, J., concurring) (“Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation.”). We have never receded from, or even questioned, that conclusion. Smith has been consistently cited by the district courts of appeal. Dep’t of Highway Safety & Motor Vehicles v. Brandenburg, 891 So.2d 1071, 1075 (Fla. 5th DCA 2004); State Dep’t of Highway Safety & Motor Vehicles v.

Gordon, 860 So.2d 469, 471 (Fla. 1st DCA 2003); State v. Scibana, 726 So.2d 793, 794 (Fla. 4th DCA 1999); McDaniel v. State, 683 So.2d 597, 598 (Fla. 2d DCA 1996); Gomez v. State, 621 So.2d 578, 579 (Fla. 3d DCA 1993). Therefore, the notion that the revocation of a driver’s license is not punishment is fairly settled law. No one contests that the loss of the driving privilege constitutes a personal hardship. We recognized as much in Smith.

See 93 So.2d at 107 (“True the recalcitrant law violator might feel the pain of the loss of a valuable privilege.”); see also Aronovitz, 114 So.2d at 787 (“It is a privilege to hold a license to drive. It is a severe handicap to be compelled to do without one.”). However, as just discussed, the fact that it may constitute a hardship does not make it punishment. Otherwise, as with deportation and the other examples cited above, many consequences that have been deemed collateral would instead be direct.

Accordingly, we reaffirm our statements in previous cases and conclude that license revocation, although a personal hardship, does not constitute punishment and therefore cannot be a direct consequence of a plea. III. THE CONSEQUENCE IN THIS CASE WAS NOT IMMEDIATE Because we have concluded that mandatory license revocation is not punishment and therefore not a direct consequence, it was not necessary for the trial court to inform Bolware about it before entry of the plea. However, there are two additional bases upon which to conclude that the revocation of Bolware’s license was not a direct consequence.

First, our definition of a direct consequence requires not only that it “must affect the range of punishment,” but that it do so “in a definite, immediate, and largely automatic way.” Partlow, 840 So.2d at 1043 (emphasis added). Bolware pled no contest and was convicted of driving with a suspended or revoked license. However, the trial court did not revoke his license at that time. It was not until six months later that the Department of Highway Safety and Motor Vehicles noticed it was Bolware’s third conviction for the same offense (DWLSR) and decided that he was a habitual traffic offender. See § 322.264, Fla.

Stat. (2000). Thus, under the statute at issue in this case, the consequence (license revocation) was not immediate. Second, in Ginebra, we limited the trial judge’s obligation to inform defendants of “only those consequences of the sentence which the trial court can impose.” 511 So.2d at 961 (emphasis added). In contrast to the statutes at issue in Daniels and other cases, in which the court revoked the driver’s licenses of certain drug offenders, see, e.g., § 322.055, Fla. Stat. (2007), or of defendants convicted of DUI manslaughter, see, e.g., § 322.28(2)(e), Fla. Stat. (2007),

section 322.27(5) leaves it to the Department to revoke the license of a habitual traffic offender. (“The department shall revoke the license of any person designated a habitual offender....”). The trial court could not have imposed the license revocation in this case, and therefore, under our decision in Ginebra, it is not a direct consequence about which the court must inform a defendant. IV. CONCLUSION A voluntary plea requires that the defendant be told only of consequences that affect the range of criminal punishment and those other subjects specifically listed in rule 3.172(c).

Our cases are clear that the loss of the privilege to drive is not punishment. Certainly the loss of one’s driver’s license can be extremely burdensome and, in this case, it was clearly the most serious consequence of Bolware’s plea. Therefore, although it is not direct, we nevertheless conclude that the revocation of a license is such a serious consequence that a defendant should be informed of it. Accordingly, we direct that the rule be amended as we have done with other consequences that we found to be collateral but of substantial importance. See, e.g., Fla. R.Crim.

P. 3.172(c)(9) (requiring defendant convicted of a sexual offense be informed of the potential for involuntary civil commitment); Fla. R.Crim. P. 3.172(c)(8) (requiring defendant be told of the potential for deportation). In so doing, we agree with Justice Cantero’s concurring opinion in Partlow, wherein he acknowledged: A defendant’s constitutional right to a jury trial is sacrosanct. See art. I, § 22, Fla. Const. (“The right of trial by jury shall be secure to all and remain inviolate.”); State v.

Griffith, 561 So.2d 528, 530 (Fla.1990) (stating that right of trial by jury is “indisputably one of the most basic rights guaranteed by our constitution”); Fischer v. State, 429 So.2d 1309, 1311 (Fla. 1st DCA) (“The right to trial by jury is, of course, one of the most sacred and fundamental rights of our legal system.”), review denied, 438 So.2d 834 (Fla.1983). The rules should require that before a defendant waives that important right, the defendant be informed of all important consequences, whether direct or collateral. 840 So.2d at 1045 (Cantero, J., concurring).

This prospective rule amendment, however, will not provide relief to Bolware. Nevertheless, we urge that trial courts continue to follow their practice of informing defendants of this serious consequence because Daniels has been the law in the Fourth District for over a decade. We also hope that counsel include this important consequence when advising defendants about whether or not to plead guilty or nolo contendere.

Given our conclusion that the revocation of a driver’s license is a collateral consequence to a plea of no contest to the charge of DWLSR, we approve the First District’s decision in Bolware and hold that neither defense counsel nor the trial court was required to advise Bolware that his license could be revoked. We approve the Fifth District’s decision in Sullens and the First District’s decision in Caswell, and disapprove the decisions of the Fourth District in Daniels, Whipple, Prianti and Nordelus, to the extent that they conflict with the instant decision. It is so ordered.

WELLS, PARIENTE, BELL, JJ., and CANTERO, Senior Justice, concur. PARIENTE, J., specially concurs with an opinion, in which CANTERO, Senior Justice, concurs. ANSTEAD, J., concurs in part and dissents in part with an opinion. LEWIS, J., concurs in result only. QUINCE, C.J., dissents with an opinion. . This

section provides: The department shall revoke the license of any person designated a habitual offender, as set forth in s. 322.264, and such person shall not be eligible to be relicensed for a minimum of 5 years from the date of revocation, except as provided for in s. 322.271. Any person whose license is revoked may, by petition to the department, show cause why his or her license should not be revoked. § 322.27(5), Fla. Stat. . This statute provides that upon conviction for possession or sale of a controlled substance, the trial court shall direct the Department to revoke the defendant's driver’s license.

See § 322.055(1), Fla. Stat. . We recognize that Bolware’s postconviction motion was based upon his counsel's alleged ineffectiveness in failing to inform him that mandatory license revocation was a possible consequence of his no contest plea and that such claims should be analyzed under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, in State v.

Ginebra, 511 So.2d 960, 960 & n. 1 (Fla. 1987), we stated that "[a]n ineffective assistance of counsel claim is relevant solely to the extent that it bears on the issues of voluntariness and understanding of the consequences of pleading guilty” and held that "for counsel to provide the reasonably effective assistance mandated by the Constitution, he need advise his client of only the direct consequences of a guilty plea.” Accord Major v. State, 814 So.2d 424, 431 (Fla.2002).

Therefore, our "voluntariness” analysis as to whether license revocation is a direct consequence about which a defendant should be informed and our ultimate resolution of the conflict issue in this case are determinative of whether Bolware’s counsel was deficient in failing to inform him of this consequence. . A person so designated must comply with lifelong obligations, including registering at least every six months with the county sheriff to provide specified information and re-registering within 48 hours of establishing or changing a temporary or permanent residence. See § 943.0435(2), Fla. Stat. (2007).

With each change of temporary or permanent residence, a registrant also must report to the Department of Highway Safety and Motor Vehicles to obtain a state driver's license or identification card reflecting the address and the sexual offender designation. Id. Failure to comply with these requirements is a felony. See, e.g., id. § 943.0435(4)(c), (9)(a), (14)(c)(4). Specific information about the sexual offender may be released to the public in the "governmental interests of public safety.” Id. § 943.0435(12); see also id. §§ 943.043, 944.606(2).

The statute also prohibits sexual predators from working or volunteering in schools, playgrounds, or other places where "children regularly congregate.” State v. Robinson, 873 So.2d 1205, 1211-14 (Fla. 2004) (describing the registration requirements and other restrictions on “sexual predators” and acknowledging the attendant effects of such a designation). . We direct that the Criminal Procedure Rules Committee of The Florida Bar formulate language for amendment of rule 3.172(

c) for use during the plea colloquy. That colloquy should specify that if the defendant pleads guilty or nolo contendere and the offense to which the defendant is pleading is one for which automatic, mandatory driver's license suspension or revocation is required, regardless of whether the suspension or revocation is by the court or by a separate agency, the trial court should inform the defendant that the plea may result in automatic, mandatory suspension or revocation as part of its plea colloquy.