Brown v. State, 91764

Decision Date15 October 1998
Docket NumberNo. 91764,91764
Citation719 So.2d 882
Parties23 Fla. L. Weekly S535 Terry Kenneth BROWN, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Bennett H. Brummer, Public Defender, and Dorothy F. Easley, Special Assistant Public Defender, Eleventh Judicial Circuit, Miami, for Petitioner.

Robert A. Butterworth, Attorney General, and Roberta G. Mandel and Michael J. Neimand, Assistant Attorneys General, Miami, for Respondent.

ANSTEAD, Justice.

We have for review the decision in Brown v. State, 700 So.2d 447 (Fla. 3d DCA 1997). We accepted jurisdiction to answer the following question certified to be of great public importance:



Id. at 448. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the affirmative and hold that, consistent with Old Chief, when a criminal defendant offers to stipulate to the convicted felon element of the felon-in-possession of a firearm charge, the Court must accept that stipulation, conditioned by an on-the-record colloquy with the defendant acknowledging the underlying prior felony conviction(s) and acceding to the stipulation. The State should also be allowed to place into evidence, for record purposes only, the actual judgment(s) and sentence(s) of the previous conviction(s) used to substantiate the prior convicted felon element of the charge. We quash the decision under review and remand for a new trial. 1


Petitioner Terry Kenneth Brown (Brown) was convicted of unlawfully possessing a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1995), and sentenced to seven years in prison as a habitual felony offender. § 775.084(4), Fla. Stat. (1995). At trial, the State was allowed to introduce certified copies of two prior convictions for robbery, a second-degree felony, and burglary of a structure, a third-degree felony, into evidence to prove the "convicted felon" element of the crime, despite Brown's objection and offer to stipulate to the existence of that element of the crime. Brown, 700 So.2d at 448. In addition, the trial court instructed the jury that Brown had previously been convicted of three felonies in addition to the two established by the certified records.

On appeal, the Third District acknowledged its responsibility to follow this Court's binding precedent in Parker v. State, 408 So.2d 1037 (Fla.1982), and held, in accord with Parker, that the trial court had not abused its discretion in rejecting the offer to stipulate and in admitting the copies of the convictions. Brown, 700 So.2d at 448. In so doing, the district court declined to apply the Supreme Court's recent opinion in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), wherein it held that a federal district court abuses its discretion if it refuses a defendant's offer to stipulate to the fact of a prior felony conviction, and instead "admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction." Id. at 174, 117 S.Ct. 644 (emphasis supplied). Nevertheless, the Third District certified the question referred to above as one of great public importance in order to give this Court an opportunity to revisit our holding in Parker in light of the holding in Old Chief. Brown, 700 So.2d at 448.


In Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the defendant was charged with several crimes, including possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)(1994). 2 Id. at 174, 117 S.Ct. 644. The defendant offered to stipulate to the fact of the prior felony conviction as an alternative In its opinion, the Court focused on the scope of a federal trial judge's discretion under Federal Rule of Evidence 403, which provides:

                to the introduction of official records reflecting the specific crime for which he was convicted.  Id. at 175, 117 S.Ct. 644.   The government refused to acquiesce in the stipulation.  Id. at 177, 117 S.Ct. 644.   The district court agreed and the Ninth Circuit upheld the ruling on appeal.  Id. On review, the Supreme Court reversed the lower court's ruling

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The Court made clear at the outset that if "relevant evidence [such as the judgment of a prior conviction] is inadmissible in the presence of other evidence related to it [such as a stipulation of felon status], its exclusion must not rest on the ground that the other evidence has rendered it 'irrelevant,' but on its character as unfairly prejudicial, cumulative or the like," id. at 179, 117 S.Ct. 644. The Court noted that the "unfair prejudice" contemplated in the rule "means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. at 180, 117 S.Ct. 644 (quoting Fed.R.Evid. 403 advisory committee's note). The Court then acknowledged that "[s]uch improper grounds certainly include the one that Old Chief points to here: generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged (or, worse, as calling for preventive conviction even if he should happen to be innocent momentarily)." Id. at 180-81, 117 S.Ct. 644.

The Court found that the advisory notes to the federal rules left no question that when rule 403 "confers discretion by providing that evidence 'may' be excluded, the discretionary judgment may be informed not only by assessing an evidentiary item's twin tendencies [probative value and unfair prejudice], but by placing the result of that assessment alongside similar assessments of evidentiary alternatives." Id. at 184-85, 117 S.Ct. 644. The Court observed that "what counts as the Rule 403 'probative value' of an item of evidence, as distinct from its Rule 401 'relevance,' may be calculated by comparing evidentiary alternatives." Id. at 184, 117 S.Ct. 644.

In applying this analytical framework to the issue before it, the Court found that "there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant." Id. at 185, 117 S.Ct. 644. The Court noted that the risk "will vary from case to case ... but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning." Id. The Court determined that the stipulation as to convicted felon status would have provided "seemingly conclusive evidence" of its existence, and that the name of the prior offense "addressed no detail in the definition of the prior-conviction element that would not have been covered by the stipulation or admission." Id. at 186, 117 S.Ct. 644.

Finally, although acknowledging that "the accepted rule that the prosecution is entitled to prove its case free from any defendant's option to stipulate the evidence away rests on good sense," id. at 189, 117 S.Ct. 644, the Court concluded:

This recognition that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him. As in this case, the choice of evidence for such an element is usually not between eventful narrative and abstract proposition, but between propositions of slightly varying abstraction, either a record saying that conviction for some crime occurred at a certain time or a statement admitting the same thing without naming the particular offense.... The most the jury needs to know is that the conviction Id. at 190-91, 117 S.Ct. 644 (emphasis added). Accordingly, "[i]n this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction." Id. at 191, 117 S.Ct. 644.

admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant's admission and underscored in the court's jury instructions.


In Parker v. State, 408 So.2d 1037 (Fla.1982), relying on our earlier decision in Arrington v. State, 233 So.2d 634 (Fla.1970), we held that the State could refuse a defendant's stipulation to establish the "convicted felon" element of the crime of illegal possession of a firearm by a convicted felon. We reasoned that because the prior conviction is an essential element of the crime, proof of conviction is admissible "unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence." Parker, 408 So.2d at 1038. 3 In a brief analysis, we found no abuse of discretion by the trial court in admitting a prior conviction for breaking and entering to establish the "convicted felon" status.

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