DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KENNETH JEROME GODWIN, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D22-645

[November 16, 2022]

Appeal of order denying rule 3.850 motion from the Circuit Court for 

the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, 

Judge; L.T. Case No. 562017CF735A.

Kenneth J. Godwin, Jr., Lowell, pro se. 

Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, 

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Kenneth Godwin appeals an order summarily denying his rule 3.850 

motion for post-conviction relief and directing the clerk to amend the 

judgment and sentence to reflect that he entered a plea to a different 

offense. We affirm the denial of relief under rule 3.850 but reverse the 

portion of the order directing the clerk to amend the judgment and 

sentence.

Godwin was arrested for driving with a revoked license as a habitual 

traffic offender, a third-degree felony in violation of section 322.34(5), 

Florida Statutes (2016). However, the State charged Godwin by 

information with driving while his license was canceled, suspended, or 

revoked after two or more prior convictions, a third-degree felony in 

violation of an earlier subsection, section 322.34(2)(c), Florida Statutes 

(2016). He entered an open plea of no contest to that offense and was 

sentenced to ten years in prison.

In a rule 3.850 motion, Godwin argued that counsel failed to advise 

that he could not be prosecuted under section 322.34(2)(c) because he had 
2

been designated as a habitual traffic offender. See § 322.34(2), Fla. Stat. 

(2016); Finney v. State, 219 So. 3d 254, 255–56 (Fla. 1st DCA 2017). 

Godwin alleged he would not have entered a plea and instead would have 

insisted on going to trial if counsel had advised him of this “complete 

defense.” The State conceded Godwin should not have been charged under 

section 322.34(2)(c) but argued he was not entitled to relief under rule 

3.850 because he failed to establish prejudice. The court agreed with the 

State that Godwin was not entitled to relief under rule 3.850 but directed 

the clerk to amend the judgment and sentence to reflect that he had 

entered a plea to a violation of section 322.34(5) instead of section 

322.34(2)(c).

We affirm the court’s ruling that Godwin was not entitled to relief under 

rule 3.850 because he failed to establish prejudice resulting from counsel’s 

alleged error. To establish prejudice, Godwin needed to demonstrate a 

reasonable probability that he would not have entered a plea—and would 

have insisted on going to trial—if counsel had advised him that he had a 

“complete defense” under section 322.34(2)(c). See Grosvenor v. State, 874 

So. 2d 1176, 1179 (Fla. 2004) (citing Hill v. Lockhart, 474 U.S. 52, 59 

(1985)). The viability of the defense is relevant to evaluating the probability 

that Godwin would have insisted on going to trial. See Grosvenor, 874 So. 

2d at 1179–82.

Godwin did not demonstrate that his designation as a habitual traffic 

offender would have been a viable defense at trial as he failed to show that 

the State would have been precluded from amending the information to 

charge him under the proper subsection, section 322.34(5), if he had 

raised the issue.1 A charge under section 322.34(5) would have required 

the same substantive proof and carried the same potential sentence as a 

charge under section 322.34(2)(c), and Godwin was on notice that his 

conduct likely violated section 322.34(5) because he was arrested under 

that subsection. See Thach v. State, 342 So. 3d 620, 623–24 (Fla. 2022) 

(holding that the State can amend the information during trial unless the 

defendant makes an individualized showing of prejudice to his substantial 

rights). Because Godwin failed to show that his designation as a habitual 

traffic offender would have been a viable defense at trial, the court did not 

err in ruling that he failed to establish a reasonable probability that he 

1 Godwin’s reliance on Finney, 291 So. 3d at 255–56, is misplaced. In Finney, 

the defendant could not be prosecuted under section 322.34(2)(c) because he had 

been designated as a habitual traffic offender. Id. However, he also could not be 

prosecuted under section 322.34(5) because he had never had a driver’s license. 

Id. Here, the record reflects that Godwin had a driver’s license that had been 

revoked upon his designation as a habitual traffic offender.
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would have insisted on going to trial.

However, we reverse the portion of the court’s order directing the clerk 

to amend the judgment and sentence to reflect that Godwin entered a plea 

to a violation of section 322.34(5) instead of section 322.34(2)(c). The 

information was never amended to charge Godwin under section 

322.34(5), and it is a due process violation for the judgment and sentence 

to show that he was adjudicated guilty and sentenced for a crime that was 

not charged in the information. See Bodie v. State, 143 So. 3d 420, 422 

(Fla. 1st DCA 2013) (citing Crain v. State, 894 So. 2d 59, 69 (Fla. 2004)). 

On remand, the court is directed to reinstate the original judgment and 

sentence reflecting that Godwin entered a plea to a violation of section 

322.34(2)(c) as charged in the information. We affirm on all other issues 

raised without additional comment.

Affirmed in part, reversed in part, and remanded with instructions.

KLINGENSMITH, C.J., CIKLIN and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.