Burkett v. State

• Decision Date: 15 January 1988
• Docket Number: No. BS-286,BS-286
• Citation: 518 So.2d 1363,13 Fla. L. Weekly 189
• Parties: 13 Fla. L. Weekly 189 William Lee BURKETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1363

518 So.2d 1363

13 Fla. L. Weekly 189

William Lee BURKETT, Appellant, v. STATE of Florida, Appellee.

No. BS-286.

District Court of Appeal of Florida,

First District.

Jan. 15, 1988.

William R. Slaughter, II, of Slaughter and Slaughter, Live Oak, for appellant.

Robert A. Butterworth, Atty. Gen., and Kenneth Muszynski, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

William Lee Burkett appeals his conviction for possession of a firearm by a convicted felon, asserting that he did not know he was a convicted felon at the time he possessed the firearm. We affirm.

Section 790.23, Florida Statutes (1985), provides:

(1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year to own or to have in his care, custody, possession, or control any firearm or electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.

(2) This section shall not apply to a person convicted of a felony whose civil rights have been restored.

Appellant's predicate conviction and sentence for attempted sexual battery and trespass of an occupied structure was affirmed on July 23, 1986, and mandate issued on August 8, 1986. ¹ Appellant was arrested on August 17 as the result of a late night incident at Suwannee Springs, and was charged with various offenses including aggravated assault with a firearm and possession of a firearm by a convicted felon. At his trial without a jury on the latter charge, appellant asserted that he had not received notification that his conviction for attempted sexual battery had been affirmed on appeal when he was arrested for the firearm possession offense.

In an affidavit, appellant's attorney swore that he had received the appellate court's mandate on August 14 and mailed it and the opinion to appellant's mother's address (given to him as appellant's residence); that on August 16, appellant's mother telephoned him to say that she had received the materials, but that appellant did not reside at her address; and that the opinion and mandate were then sent to appellant's new address, probably on the following day.

Appellant asserts on appeal that the trial court erred in finding him guilty of possession of a firearm by a convicted felon when the uncontradicted evidence established that he did not know he was a convicted felon at the time he possessed the firearm. He contends that a defendant's knowledge of his status as a convicted felon is an essential element which must be proved in order to sustain a conviction for violation of section 790.23, even though the statute does not expressly mention "knowledge" as an element of the offense.

He concedes that a defendant's knowledge of his status as a convicted felon is usually implied from the circumstances, ² that in a prosecution for possession of a firearm by a convicted felon the State establishes the defendant's knowledge of his status by a certified copy of the prior judgment and sentence, and that such proof would, under most circumstances, preclude a claim that the defendant did not know he was a convicted felon, because the pronouncement of judgment and imposition of sentence usually signifies the conclusion of judicial involvement in a case.

He contends, however, that when a defendant pursues an appeal of a judgment and sentence, he is not considered a convicted felon until the appellate court affirms the conviction, citing Wheeler v. State, 465 So.2d 639 (Fla. 2d DCA 1985). He argues that a defendant free on an appeal bond is not prohibited from possessing a firearm, or voting, or otherwise exercising his constitutional and civil rights during the pendency of that appeal. ³ He asserts that at the conclusion of an unsuccessful appeal the defendant is usually notified by his counsel, law enforcement, the state attorney or his bondsman that his judgment and sentence have been affirmed and that he must report to serve his sentence, but that in his case he had not received such a communication at the time he possessed the firearm in question, and did not know that his conviction had been affirmed.

The State, giving appellant the benefit of an assumption that he was unaware not only of the issuance of the mandate in the appeal of his prior conviction, but also of the opinion affirming his conviction which had been issued more than two weeks before the mandate, argues that his position is flawed by the two erroneous propositions upon which it is based: 1) that his prior conviction was not final for purposes of the firearm possession statute until it was affirmed on appeal; and 2) that his lack of knowledge of the affirmance is a defense. We agree.

The terms "convicted" and "conviction" have been used in different contexts with different meanings, to represent the determination of guilt resulting from a plea or trial, regardless of whether adjudication of guilt is withheld or imposition of sentence is suspended, ⁴ or to include the sentence or judgment of the court. ⁵

In Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947), the Florida Supreme Court held that a conviction may not be relied on for the purpose of enhancing criminal penalties under the habitual offender statute until it is final, and that if an appeal has been taken, the conviction does not become final until the judgment of the lower court has been affirmed by the appellate court. However, in Stevens v. State, 409 So.2d 1051 (Fla.1982), the court disapproved the holding in Ledee v. State, 342 So.2d 100 (Fla. 3d DCA 1977), in which the Third District Court of Appeal had relied on Joyner in finding that a probation revocation could not be based on a conviction which was pending on appeal. The Stevens court approved the reasoning of the Fifth District Court of Appeal that a probation revocation based on a subsequent conviction is proper although the conviction is subject to appeal, since a judgment of conviction is presumed to be correct until reversed.

Earlier, in McCrae v. State, 395 So.2d 1145 (Fla.1980), cert. den., McCray v. Florida, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981), the court held that a conviction, used as an aggravating factor for the imposition of the death penalty under section 921.141(5)(b), means a plea of guilty accepted by the court, even without a formal adjudication of guilt. The court's opinion indicates that it does not consider Joyner dispositive of the meaning of the term "conviction" outside the context of the habitual offender statute.

In Prudential Insurance Company of America, Inc. v. Baitinger, 452 So.2d 140 (Fla. 3d DCA 1984), the court found that a "final judgment of conviction" under section 732.802, which precludes a convicted murderer from receiving insurance benefits when the victim was the insured, means an adjudication of guilt by the trial court, notwithstanding a pending appeal, citing DePaulis v. Judges of District Court of Appeal, Fourth District, 373 So.2d 663 (Fla.1979) , ⁶ and Weathers v. State, 56 So.2d 536 (Fla.1952), ⁷ and distinguishing Joyner on the ground that the respective controlling statutes had different purposes.

Having considered these and other authorities, and the context in which the term is used in section 790.23, we hold that a defendant is "convicted", for purposes of that statute, when he is adjudicated guilty in the trial court, notwithstanding the fact that he has the right to contest the validity of the conviction by appeal or by other procedures. ⁸ Our conclusion is based upon the presumptive correctness of a criminal conviction, which allows it to be relied on for the essentially regulatory purpose of prohibiting convicted felons from possessing firearms, and the fact that a pending appeal of the predicate conviction is irrelevant to the legislative purpose of protecting the public by preventing the possession of firearms by persons who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instrumentalities. ⁹ This interpretation of section 790.23 is supported by decisions from other jurisdictions having similar statutory provisions. ¹⁰

We acknowledge conflict with the holding in Wheeler v. State and note the distinction between Wheeler and this case, that this appellant's predicate conviction had been affirmed at the time he illegally possessed the firearm at Suwannee Springs. Technically, we could perhaps affirm appellant's conviction on the firearm possession charge by rejecting his claim that his knowledge of this court's mandate on his prior appeal was required in order for a violation of the statute to have occurred, assuming that disposition of the pending appeal was a prerequisite to conviction on the latter charge. We decline to do so, however, because the holding in Wheeler is incorrect and may, if left unchallenged, mislead members of the bench and bar, as well as members of the general public, into thinking that the Florida Legislature intended to allow convicted felons to possess firearms during the pendency of their appeals or other petitions for post-conviction relief. ¹¹ Our holding on this point moots appellant's "knowledge" argument.

However, even if we were to assume, for the sake of argument, that appellant was not prohibited from carrying a firearm until his conviction was affirmed on appeal, and that he was not made aware of this court's opinion issued on July 23 or the mandate issued on August 8, it is undisputed that he was a convicted felon at the time he was arrested on August 17 for carrying a firearm. A defendant's knowledge of his status as a convicted felon is not an essential element which must be proved in order to sustain a conviction for violation of section 790.23, although in most cases the State's proof of the...