LEWIS, J.

Petitioner Pedro Gil seeks review of the decision of the Third District Court of Appeal in State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011), on the basis that it expressly and directly conflicts with the decisions of other district courts of appeal on a question of law. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

FACTS AND BACKGROUND INFORMATION

On October 6, 2009, Pedro Gil was stopped in Miami-Dade County for speeding. Gil informed the officer that his driver's license was suspended, and a records search revealed that Gil was a habitual traffic offender.1 Gil was then arrested. For purposes of this case, the arrest report listed the following charges: driving with a suspended license (DWLS), in violation of section 322.34(2), Florida Statutes (2009), and unlawful driving as a habitual traffic offender (HTO), in violation of section 322.34(5), Florida Statutes (2009). Section 322.34 is titled "Driving while license suspended, revoked, canceled, or disqualified" and provides:

§ 322.34, Fla. Stat. (2009).

On October 27, 2009, Gil pled nolo contendere to the misdemeanor DWLS charge in a county court and was adjudged guilty of this charge. Gil was sentenced to six months' probation and two hundred hours of community service, plus the payment of $358. On the same day, the State Attorney for the Eleventh Judicial Circuit filed an information that charged Gil with a violation of the felony HTO statute. Gil subsequently filed a motion to dismiss the information on the basis that it violated Florida's double jeopardy statute, section 775.021(4), Florida Statutes (2009), which provides:

In support of the claim, Gil relied upon Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006), in which the Fifth District held that dual convictions under the DWLS statute and the HTO statute violate the "degree variants" principle of double jeopardy under section 775.021(4)(b)(2), Florida Statutes. Id. at 931.

In response to Gil's motion, the State asserted that the cases relied upon by the Fifth District in Duff had been overruled by this Court in Valdes v. State, 3 So.3d 1067 (Fla.2009). In Valdes, this Court held that "[t]he Legislature intends to disallow separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees." Id. at 1076 (quoting State v. Paul, 934 So.2d 1167, 1176 (Fla.2006) (Cantero, J., specially concurring)). According to the State, the crimes of unlawful driving as a habitual traffic offender under section 322.34(5) and driving with a suspended license under section 322.34(2) do not satisfy the second exception delineated in section 775.021(4)(b)(2) because they are located in separate statutory provisions, neither offense is an aggravated form of the other, and the offenses are not degree variants of the same offense.

The circuit court granted Gil's motion to dismiss the felony information in an order which provided:

On appeal, the Third District reversed the dismissal of the information. Gil, 68 So.3d at 1003. While acknowledging that the HTO provision, codified in section 322.34(5), appears to be a degree variant of the DWLS provision, codified in section 322.34(2), the Third District nonetheless stated:

Id. at 1001-02. The Third District ultimately held that "[b]ecause suspension or revocation under subsection (2) of section 322.34 is based on entirely different conduct and on a completely different criteria than a revocation under subsection (5), subsection (5) cannot be a degree variant of subsection (2), and therefore convictions for violating subsection (2) and subsection (5) do not constitute double jeopardy." Id. at 1003.

This Court granted review of Gil based upon express and direct conflict with the decisions in Dees v. State, 54 So.3d 644 (Fla. 1st DCA 2011), Duff, 942 So.2d at 926, and Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002). In these cases, the First, Fourth, and Fifth District Courts of Appeal held that dual convictions under sections 322.34(2) and 322.34(5) are prohibited. The Dees and Franklin decisions do not discuss double jeopardy with regard to these statutory subsections, but instead hold that dual convictions are prohibited because subsection (2), by it express terms, does not apply to habitual traffic offenders. Franklin, 816 So.2d at 1204 ("[B]y definition, Franklin cannot be convicted of a violation of s. 322.34(2), which expressly does not apply to persons whose licenses have been revoked pursuant to s. 322.264, i.e., habitual offenders."); Dees, 54 So.3d at 644 (citing Franklin).

ANALYSIS

We conclude that the decision below must be quashed. Gil cannot be prosecuted under sections 322.34(2) and 322.34(5) for two reasons. First, the plain language of section 322.34 reflects that the crimes delineated in subsections (2) and (5) are mutually exclusive. Second, subsections (2) and (5) constitute variant offenses and, therefore, dual prosecutions of Gil under these provisions would violate the Double Jeopardy Clauses of both the United States and Florida Constitutions.2

Mutual Exclusivity

As previously discussed, Gil entered a plea of nolo contendere to the DWLS charge, codified at section 322.34(2), Florida Statutes. This statutory subsection expressly provides that it does not apply to habitual traffic offenders:

(Emphasis supplied.) Based on this unambiguous language, we hold that once a person is adjudged guilty for a violation of subsection (2), a subsequent charge under subsection (5) is unauthorized because a habitual traffic offender cannot violate subsection (2). Accordingly, once Gil pled nolo contendere to, and was adjudged guilty of, a violation of subsection (2), the State was foreclosed from thereafter prosecuting him for a violation of subsection (5).

Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment provides that "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Similarly, the Florida Constitution provides that "[n]o person shall ... be twice put in jeopardy for the same offense." Art. I, § 9, Fla. Const. The scope of the Double Jeopardy Clause is the same under both the United States and Florida Constitutions. Trotter v. State, 825 So.2d 362, 365 (Fla.2002). The United States Supreme Court has held that the Double Jeopardy Clause operates as a restraint on the judiciary from imposing multiple sentences for a single offense where it has not been authorized by the legislative branch:

Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The United States Supreme Court has further explained that because the substantive power to define criminal offenses and determine punishments is a legislative prerogative, "the question under the Double Jeopardy Clause whether punishments are `multiple' is essentially one of legislative intent." Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); see also Valdes, 3 So.3d at 1075 (quoting Johnson).

The Florida statute that governs double jeopardy is modeled after the test articulated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).3 Section 775.021, Florida Statutes (2009), provides:

The statute expresses the legislative intent that defendants be charged with every offense that arises out of one criminal episode unless an exception applies.

Neither party disputes that subsections 322.34(2) and 322.34(5) each contains an element that the other does not. The DWLS provision requires that the driver know his or her license is suspended, cancelled, or revoked, whereas the HTO provision, subsection (5), contains no knowledge component. The HTO provision requires that the driver be designated a habitual traffic offender, while subsection (2) does not. Accordingly, dual prosecutions for these offenses are not barred under the "same elements" test articulated in subsection 775.021(4)(a).

However, double jeopardy may still attach if subsections 322.34(2) and 322.34(5) satisfy one of the exceptions provided under subsection 775.021(4)(b). As previously discussed, the DWLS and HTO provisions do not require identical elements of proof. Further, driving with a suspended license is not a lesser included offense of unlawful driving as a habitual traffic offender. Instead, the dispositive issue is whether the DWLS offense and the HTO offense are "degrees of the same offense" under subsection (4)(b)(2).

The standard by which Florida courts evaluate whether two statutory offenses are variants of each other — thereby falling under the exception provided in subsection (4)(b)(2) — has evolved over time. In Sirmons v. State, 634 So.2d 153 (Fla.1994), this Court held that dual prosecutions were prohibited by subsection (4)(b)(2) because the two crimes at issue — robbery with a weapon and grand theft of an automobile — were degree variants of the "core offense" of theft. Id. at 154. In 2001, this Court recognized the continued viability of the "core offense" construction, but adopted an approach requiring courts to determine the "primary evil" a statute is intended to punish to evaluate whether certain crimes are variant offenses for purposes of double jeopardy. Gordon v. State, 780 So.2d 17, 23-24 (Fla.2001); see also State v. Florida, 894 So.2d 941, 949 (Fla.2005) ("The primary evil of aggravated battery is an intentional, nonconsensual touching or striking, whereas the primary evil of attempted second-degree murder is the potential of the defendant's act to cause death. The evil of battery omits lethal potential, and the evil of attempted second-degree murder omits victim contact. Thus, the two crimes are not merely degree variants of the same core offense, and therefore do not come within the exception... in section 775.021(4)(b)(2).").

In 2009, however, the Court concluded that the "primary evil" test was contrary to legislative intent because it strayed from the plain meaning of the double jeopardy statute. Valdes v. State, 3 So.3d 1067, 1075 (Fla.2009). In receding from the "primary evil" test, the Court in Valdes explained:

Id. at 1075. In its place, the Court adopted an approach that tracked the language of the statute. The Court first concluded that the exception was intended to apply narrowly based upon its stated application to crimes that are degrees of the same offense as provided by statute. Id. at 1076. The Court then held that the exception, by its express language, prohibits separate punishments only when a criminal statute provides for variations in degree of the same offense, such that a defendant would be punished for a violation of two or more degrees of a single offense. Id.4 The Court also concluded that the term "degree" in section 775.021(4)(b)(2) has a plain meaning — "a level based on the seriousness of an offense." Id. (quoting Black's Law Dictionary 456 (8th ed. 2004)). At the same time, the Court noted that it is not necessary for the Legislature to use the word "degree" when it defines a crime for the degree variant exception to apply. Id. We explained that other statutory designations can evince a degree relationship, such as when a crime has aggravated forms of the basic offense. Id.

Based upon this standard, the Court in Valdes held that dual convictions for discharging a firearm from a vehicle within 1000 feet of a person, in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle, in violation of section 790.19, Florida Statutes (2003), did not violate double jeopardy. Id. at 1068. According to the Court, these crimes did not qualify as degree variants "because the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense." Id. at 1077.

Applying the test articulated in Valdes, we conclude that sections 322.34(2) and 322.34(5) qualify as variant offenses under section 775.021(4)(b)(2), Florida Statutes, and double jeopardy precludes the prosecution of Gil under the HTO provision in light of his prior conviction under the DWLS provision based on the same facts. First, unlike Valdes, the two offenses at issue here are located in the same statute, which governs operating a motor vehicle without a valid license. § 322.34, Fla. Stat.

Second, in contrast to the holding in Valdes, we conclude that driving with a suspended license under subsection (2) and unlawful driving as a habitual traffic offender under subsection (5) constitute different degrees of the same offense. Under the Florida Statutes, suspension of a driver's license is based upon a point system or the commission of certain offenses. Section 322.27, Florida Statutes (2012), which governs driver's license suspension, provides:

A review of the habitual traffic offender statute demonstrates that a number of the offenses detailed in section 322.27 serve as predicates for qualifying a person as a habitual traffic offender. Further, the DWLS provision in section 322.34(2) constitutes a predicate offense as well:

§ 322.264, Fla. Stat. (2012) (emphasis supplied). Thus, upon three convictions of driving with a suspended or revoked license within a five-year period, a driver not only qualifies as a habitual traffic offender under section 322.264, but revocation of his or her license is mandatory. § 322.27(5), Fla. Stat. ("The department shall revoke the license of any person designated a habitual offender...." (emphasis supplied)). Moreover, while a certain number of points assessed against a driver within twelve, eighteen, or twenty-four months can lead to license suspension under section 322.27(3), fifteen convictions under the same point system within a five-year period leads to mandatory license revocation as a habitual traffic offender. §§ 322.264(2), 322.27(5), Fla. Stat. Therefore, the statement by the Third District in the decision below that "suspension or revocation under subsection (2) of section 322.34 is based on entirely different conduct and on a completely different criteria than a revocation under subsection (5)" is not correct. Gil, 68 So.3d at 1003 (emphasis supplied).

The Florida Legislature has chosen to penalize habitual traffic offenders — drivers who have been convicted of specified offenses multiple times within a five-year period — more severely by revoking their licenses for a mandatory term of five years rather than using a sliding scale of punishment like that employed in section 322.27(3) for drivers who are not habitual traffic offenders. Thus, when a habitual traffic offender drives with a revoked license in violation of section 322.34(5), we conclude that it is a higher degree offense than when a person who is not a habitual traffic offender drives with a cancelled, suspended, or revoked license in violation of section 322.34(2). The penalties for the two offenses support this conclusion. For a first or second conviction under the DWLS provision, the offense constitutes only a misdemeanor. § 322.34(2)(a)-(b), Fla. Stat. Only upon a third conviction does the DWLS provision share the same level of severity as the HTO provision — a third-degree felony. § 322.34(2)(c), (5) Fla. Stat.6

Our conclusion that unlawful driving as a habitual traffic offender is a more serious offense than driving with a cancelled, suspended, or revoked license is supported by the legislative history of the interplay between these two offenses. Prior to 1997, under certain circumstances the HTO provision carried a less severe penalty than the DWLS provision. See § 322.34, Fla. Stat. (1995). In an earlier version of the statute, a third or subsequent violation of the DWLS provision was prosecuted as a third-degree felony, but a first violation of the HTO provision was prosecuted as only a first-degree misdemeanor. This created an illogical result, which was recognized in State v. Harvey, 693 So.2d 1009 (Fla. 4th DCA 1997).

In Harvey, the defendant, who was a habitual traffic offender, was charged under the earlier DWLS provision with felony driving while license suspended or revoked. Id. at 1010. The trial court dismissed the felony information, but allowed the State ten days to charge the defendant with a misdemeanor under the HTO provision. Id. The Fourth District affirmed the dismissal on the basis that the DWLS provision of section 322.34 did not apply to habitual traffic offenders. Id. at 1009-10. The State challenged the outcome — that the defendant would only face a misdemeanor charge under the HTO provision instead of a felony charge — but the district court stated that it could not change the law:

Id. at 1011 (emphasis supplied).

Notwithstanding the suggestion of the Fourth District, prior to Harvey the Florida Legislature was already considering the incongruity between the HTO and the DWLS provisions. A Senate Staff Analysis and Economic Impact Statement dated March 7, 1997, discussed a proposed amendment to section 322.34 that was eventually adopted by the Florida Legislature:

Fla. S. Comm. on Transp., CS/SB 1002 (1997) Staff Analysis 5 (Mar. 7, 1997) (emphasis supplied).7 Shortly after the decision in Harvey was issued, the Florida Legislature revised section 322.34(5) to make any violation of the HTO provision a third-degree felony. Ch. 97-300, § 40, at 5414, Laws of Fla. The Legislature's decision in 1997 to make unlawful driving as a habitual traffic offender always a felony offense demonstrates that this crime is of a more serious degree than driving with a cancelled, suspended, or revoked license.

Based upon the overlap and interaction (both current and prior) between the HTO and the DWLS provisions — the two offenses are located in the same statute; three convictions under subsection (2) within a five-year period qualifies a driver as a habitual traffic offender; the decision of the Florida Legislature to amend section 322.34 so that a violation of the HTO provision is always a felony, whereas a violation of the DWLS provision may be a misdemeanor or a felony depending on the number of prior convictions received by the driver — we conclude that subsections (2) and (5) of section 322.34 constitute degrees of the same offense, as that phrase was most recently construed in Valdes.

In this case, Gil was adjudged guilty of and sentenced for a violation of section 322.34(2). The State cannot now charge him under subsection (5) because to do so would violate the principles of double jeopardy under the degree variant exception of section 775.021(4)(b)(2). Accordingly, we conclude that the trial court properly granted the motion to dismiss the felony information.

CONCLUSION

In light of the foregoing, we hold that dual prosecutions under subsections (2) and (5) of section 322.34 are both statutorily and constitutionally prohibited. The decision of the Third District in Gil is quashed, and the decisions in Dees, Duff, and Franklin are approved to the extent they are consistent with our holding today.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, C.J., and CANADY, J., concur in result.