Barber v. State, 81-1215
| Citation | 413 So.2d 482 |
| Decision Date | 07 May 1982 |
| Docket Number | No. 81-1215,81-1215 |
| Parties | Anthony BARBER, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
In this case we must decide whether a jury verdict of guilty without an adjudication of guilt constitutes a conviction for purposes of impeachment.
During his trial for second degree robbery, appellant, under advice of counsel, testified on direct examination that he had no prior convictions. However, one week earlier another jury had returned a guilty verdict against him in a felony case although the court had not yet adjudicated him guilty. Knowing this, the state attorney informed the court that he intended to use the jury verdict for impeachment purposes. Appellant's counsel objected, arguing that a jury verdict, absent adjudication by the court, could not be so used, but the lower court allowed the inquiry. Appellant then admitted the prior conviction. He was subsequently convicted as charged.
It has long been the rule in Florida that a witness may be impeached by evidence of his prior convictions. E.g., Roberson v. State, 40 Fla. 509, 24 So. 474 (1899); § 90.08, Fla.Stat. (1977), repealed by Ch 76-237, § 2, Laws of Fla. This has been codified in the Florida Evidence Code as section 90.610, Florida Statutes (1981), which reads:
(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment ....
Florida courts have dealt with the meaning of conviction in a variety of contexts, 1 but only one case even tangentially deals with the precise question posed by this appeal. In Smith v. State, 75 Fla. 468, 78 So. 530 (1918), the state had charged the defendant under a statute precluding the sale of intoxicating liquor in a dry county by a person "having been before convicted of the same offense." The court construed the word "convicted" to be equivalent to "adjudicated" and reversed the judgment of guilt because the information had only alleged that the defendant had previously pled guilty to a like offense. In support of its decision, the court quoted from 2 Words and Phrases, Convictions, which stated that a conviction as used to effect the credibility of a witness meant the judgment of a court. 75 Fla. at 474, 78 So. at 532.
Courts in other state jurisdictions have also interpreted the word conviction, with differing results. 2 However, certain decisions of the federal courts are more significant because they deal directly with what constitutes a prior conviction for purposes of impeachment.
In United States v. Klein, 560 F.2d 1236 (5th Cir. 1977), cert. denied, 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978), the court considered whether it was proper to impeach the defendant with evidence of a jury verdict of guilt which had been returned against him in another case earlier on the same day though no adjudication had yet taken place. The court observed that until the adoption of the Federal Rules of Evidence, the federal circuits were split on the issue with respect to the propriety of using prior convictions which were on appeal for purposes of impeachment. The court noted, however, that Federal Rule of Evidence 609 now specifically provided that the pendency of an appeal would not render evidence of a conviction inadmissible for impeachment, though evidence of the pendency of the appeal would also be admissible. The court then said:
It follows that if a jury can comprehend that a prior conviction on appeal may be reversed, it can also comprehend that a jury verdict of guilty may be set aside upon a motion for judgment of acquittal, pursuant to Fed.R.Crim.P. 29(c), a motion for a new trial, pursuant to Fed.R.Crim.P. 33, or a motion in arrest of judgment, pursuant to Fed.R.Crim.P. 34. Thus, we can perceive no logical distinction, for purposes of impeachment, between a conviction on appeal and a jury verdict of guilty where judgment and sentence have not yet been entered, so long as the defendant has the opportunity to explain to the jury the legal status of the "conviction."
We hold only that a verdict of guilty where judgment and sentence have not been entered is admissible for impeachment purposes where it otherwise meets the requirements of Fed.R.Evid. 609. In so holding, we do not suggest that a guilty verdict is for all purposes the equivalent of a conviction or that a mere plea of guilty may in all cases be used for impeachment purposes. 3
Other federal circuits have followed this interpretation of rule 609. United States v. Smith, 623 F.2d 627 (9th Cir. 1980); United States v. Vanderbosch, 610 F.2d 95 (2d Cir. 1979); United States v. Duncan, 598 F.2d 839 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979); United States v. Rose, 526 F.2d 745 (8th Cir. 1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). While section 90.610 of the Florida Evidence Code is not the same as rule 609 in all particulars, that portion of the section now under consideration is identical with its federal counterpart. Because the federal interpretation is founded in logic, we choose to follow it. We believe that for purposes of impeachment, there is no significant difference in probative value between a jury's finding of guilt and the entry of a judgment thereon.
One may reasonably suggest that an anomaly will occur if the court ultimately chooses to withhold adjudication and place appellant on probation for the crime of which the jury had previously found him guilty. Should this happen, appellant cannot thereafter be impeached by evidence concerning that crime. United States v. Georgalis, 631 F.2d 1199 (5th Cir. 1980). However, the result under those circumstances would be no different than if a witness's judgment of guilt was ultimately reversed on appeal. Until such time as the reversal...
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