An appellate court has agreed with a Clay County man that he can't be a habitual traffic offender if he's never had a driver's license.

A First District Court of Appeal panel split 2-1 in striking down his felony conviction of habitual traffic offender for "driving while license revoked." It instead ordered judgment for the lesser-included misdemeanor of "driving without a license."

Chief Judge Robert T. Benton II and Judge Nikki Ann Clark say the Legislature never intended the first offense to apply to drivers who have never gotten a license.

But Judge Simone Marstiller says the law's mention of a driver's license includes the idea of a "driving privilege."

The case is Crain v. Florida, No. 1D10-2145.