TERRENCE LEE HAYES

v.

STATE OF FLORIDA

PER CURIAM.

Terrence Hayes appeals his judgment and sentence for driving while license permanently revoked. He argues the trial court erred when it denied his motion for judgment of acquittal when the State failed to establish that he possessed a license that could be permanently revoked. We agree and reverse.

The State charged Hayes with driving while license permanently revoked, in violation of section 322.341, Florida Statutes (2017), after pulling Hayes over for a traffic infraction. According to Hayes's official driving record, Hayes had a Class E license, commonly referred to as a learner's permit, from June 1975 to June 1976. Then in 2008, because of numerous convictions for driving while under the influence and driving while license suspended, the State permanently revoked his driver's license. Hayes moved for judgment of acquittal, arguing that at most he was driving without a valid license, the lesser-included charge, because he never had a license to permanently revoke.

The trial court denied the motion. State v. Miller, 227 So. 3d 562 (Fla. 2017), controls this case. In Miller, the Florida Supreme Court explained, "[T]he Legislature's use of 'driving privilege' refers to all the individuals who may lawfully operate vehicles on Florida's roads, even if they do not possess a Florida driver license." Id. at 564.

Accordingly, "[i]ndividuals . . . who drive in Florida without ever having obtained a license or having an exemption to licensure, do not have any 'driving privilege.'" Id. Based on the reasoning in Miller, the First District Court of Appeal stated that "[a] driver's license or driving privilege that does not exist cannot be canceled, suspended, or revoked." Williams v. State, 244 So. 3d 356, 361 (Fla. 1st DCA 2018). Here, there was no evidence at trial that Hayes had a driver's license or driving privilege that could have been permanently revoked. Rather, at most, the State proved that he had a learner's permit that expired in 1976.

Therefore, there was insufficient evidence that Hayes has a driver's license or driving privilege that could have been permanently revoked, which is required to prove a violation of section 322.341

Like the First District Court, we are cognizant that there appears to be a "gaping loophole" in section 322.341 because a person who fails to obtain a valid license can escape felony punishment. See id.; Finney v. State, 219 So. 3d 254, 256 (Fla. 1st DCA 2017). Yet, "it is firmly established that courts must apply a statute as they find it and leave to the Legislature the correction of inconsistencies and inequalities in its operation." Williams, 244 So. 3d at 363. Only the Legislature has the power to close this loophole, and we join with the First District Court in urging it to do so.

Therefore, we reverse and remand with instructions to vacate Hayes's conviction under section 322.341 and adjudicate him guilty of the lesser-included offense of driving without a valid driver's license. REVERSED and REMANDED with Instructions.

WALLIS, EDWARDS and HARRIS, JJ., concur.