SAWYER v. STATE, 863 So.2d 1285 (Fla.App. 4 Dist. 2004)

DAVID SAWYER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 4D01-403.District Court of Appeal of Florida, Fourth District.
Opinion filed January 28, 2004.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Ben L. Bryan, Jr., Judge; L.T. Case No. 99-34 CFMA.

John J. Anastasio, Port St. Lucie, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING
PER CURIAM.

We grant appellant’s motion for rehearing. The opinion of December 18, 2002 is withdrawn and we substitute the following opinion:

We reverse appellant’s conviction as to Count II, felony driving while license permanently suspended pursuant to section 322.341, Florida Statutes. That section was adopted under chapter 98-223, Laws of Florida, and declared invalid in Florida Department of Highway Safety Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla. 2003).

We affirm appellant’s conviction of felony DUI. Appellant complains that the trial court permitted the state to present the fingerprint comparison testimony of an expert witness at the enhancement phase of the trial. The state did not disclose the witness until after the guilt phase of the trial was nearing completion. Although he claimed prejudice, appellant did not seek a continuance of the enhancement portion of the trial so he could better confront the fingerprint testimony. Nor did appellant argue that he was not the person reflected in the judgments of conviction at issue. Accordingly, the trial court did not abuse its discretion in permitting the expert to testify. See Cooper v. State, 336 So.2d 1133, 1138 (Fla. 1976); Stavely v. State, 744 So.2d 1051, 1053
(Fla. 5th DCA 1999).

Page 1286

We remand for modification of the judgment accordingly as to Count II and for resentencing as to Count I.

STONE, GROSS, JJ., and STERN, KENNETH D., Associate Judge, concur.