Children's Palace, Inc. v. Johnson, 92-300
| Decision Date | 07 December 1992 |
| Docket Number | No. 92-300,92-300 |
| Citation | 609 So.2d 755 |
| Parties | 17 Fla. L. Week. D2806 CHILDREN'S PALACE, INC., d/b/a Children's Palace, Appellant, v. Alveria JOHNSON and Michael Johnson, Appellees. |
| Court | Florida District Court of Appeals |
Patricia Guilday and Reynolds E. Pitts, Jr. of Fuller, Johnson & Farrell, P.A., Pensacola, for appellant.
Arthur A. Shimek of Arthur A. Shimek, P.A., Pensacola, for appellees.
Children's Palace, Inc. appeals from a judgment entered following a jury verdict in favor of Alveria and Michael Johnson in a negligence action. The appellant's primary contention on appeal is that the trial court abused its discretion in refusing to permit appellant to impeach Alveria Johnson with evidence of her prior felony and misdemeanor convictions for writing worthless checks. We agree that this evidence should have been admitted and thus reverse for a new trial.
Alveria Johnson was shopping in the Children's Palace when a Nintendo stand fell and struck her from behind. As a result of injuries she sustained, she and her husband sued Children's Palace for damages. Prior to trial, she filed a motion in limine to exclude evidence of her convictions on worthless check charges. The court granted the motion after concluding that the probative value of the evidence was outweighed by its unfair prejudice.
This issue requires resolution of two questions: whether the worthless check convictions are admissible under section 90.610(1), Florida Statutes (1989), and if so, whether they should nonetheless be excluded because their probative value is substantially outweighed by unfair prejudice under section 90.403, Florida Statutes (1989).
Section 90.610(1) provides in pertinent part;
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....
The record indicates that a number of the convictions were punishable by more than a year in prison under the law at the time of conviction, and thus those convictions would be admissible as felony convictions. The remaining misdemeanor convictions are admissible as crimes involving dishonesty or false statement under the rationale of State v. Page, 449 So.2d 813 (Fla.1984). The supreme court in Page held that prior petit theft convictions are admissible to impeach a defendant without a showing that the prior convictions involved some element of deceit, untruthfulness, or falsification bearing upon the defendant's capacity to testify truthfully. The court stated that "[a]ny misdemeanor, which has as its basis lying, cheating, deceiving, or stealing, bears a reasonable relation to testimonial deceit and should be admissible for impeachment purposes." Id. at 815 (quoting People v. Spates, 77 Ill.2d 193, 204, 32 Ill.Dec. 333, 339, 395 N.E.2d 563, 569 (Ill.1979)). Mrs. Johnson was convicted under section 832.05(2)(a), Florida Statutes, which provides that
[i]t is unlawful for any person, firm, or corporation to draw, make, utter, issue, or deliver to another any check, draft, or other written order on any bank or depository, or to use a debit card, for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing, or delivering such check or draft, or at the time of using such debit card, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation....
(Emphasis added). It is apparent from the plain language of the worthless check statute that the crime has deceit as its basis.
The final consideration under section 90.610(1) is whether any of the convictions should be excluded because of being "so remote in time as to have no bearing on the present character of the witness." Sec. 90.610...
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McKiver v. Sec'y, Fla. Dep't of Corr., 18-14857
..."so remote in time as to have no bearing on the present character of the witness" is inadmissible. Children's Palace, Inc. v. Johnson , 609 So.2d 755, 757 (Fla. Dist. Ct. App. 1992) (citing FLA. STAT. § 90.610 ). "[T]he absence of similar conduct for an extensive period of time might sugges......
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