Clarke v. United States, SC15–506.

• Decision Date: 11 February 2016
• Docket Number: No. SC15–506.,SC15–506.
• Citation: 184 So.3d 1107
• Parties: Joseph Peter CLARKE, et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: Florida Supreme Court

184 So.3d 1107

Joseph Peter CLARKE, et al., Appellants,

v.UNITED STATES of America, Appellee.

No. SC15–506.

Supreme Court of Florida.

Feb. 11, 2016.

Michael Caruso, Federal Public Defender, and Tracy Michele Dreispul, Assistant Federal Public Defender, Miami, FL, for Appellant Bobby Jenkins.

Wifredo Antonio Ferrer, United States Attorney, Emily M. Smachetti, Chief, Appellate Division, Lisette Marie Reid, Assistant United States Attorney, and Amit Agarwal, Assistant United States Attorney, Miami, FL, for Appellee.

LABARGA, C.J.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In United States v. Clarke, 780 F.3d 1131 (11th Cir.2015), the court certified the following question to this Court:

Florida law prohibits a person from "own[ing] or ... hav[ing] in his or her care, custody, possession, or control any firearm ... if that person has been ... [c]onvicted of a felony in the courts of [Florida]." Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea for a felony for which adjudication was withheld qualify as a "convict[ion]"?

Id. at 1133. Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes it a criminal offense for a person to own or have in his or her care, custody, possession, or control any firearm if that person has been convicted of a felony in the courts of this state.¹ Thus, this Court is asked by the Eleventh Circuit to determine if, under Florida law, a person is "convicted" for purposes of that statute if the person has entered a plea of guilty to a felony offense but adjudication for that offense has been withheld. For the reasons that we explain, we answer the certified question in the negative and hold that for purposes of section 790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does not qualify as a "conviction" under that statute.

BACKGROUND AND FACTS

Joseph Peter Clarke and Bobby Jenkins were codefendants in the United States District Court for the Southern District of Florida. Clarke has no issues in this appeal and his case is not the subject of the certified question. We are concerned here only with the certified question as it relates to Bobby Jenkins. The Eleventh Circuit addressed all other claims appealed by Jenkins and Clarke in a separate opinion, and those claims are not at issue here.² The question now before this Court involves whether Jenkins' prior guilty plea in Florida in 2008, followed by a withhold of adjudication as to the felony offense committed by him, constitutes a "conviction" under section 790.23(1)(a).

In this case, the Eleventh Circuit explained that, after a reverse sting, Jenkins and Clarke were indicted for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute five or more kilograms of cocaine, possession of a firearm by a convicted felon, and using and carrying a firearm in furtherance of a crime of violence. Clarke, 780 F.3d at 1132. The evidence at trial revealed that Jenkins and Clarke were in a vehicle on the way to the purported home invasion robbery and, when confronted by a team of detectives, Jenkins was found with a .40 caliber SIG Sauer handgun. See United States v. Clarke, 600 Fed.Appx. 709, 713 (11th Cir.2015). In Count 3 of the indictment, Jenkins was charged with violating 18 U.S.C. § 922(g)(1), which makes it a federal offense for a person convicted of an offense punishable by a term of imprisonment exceeding one year to possess a firearm or ammunition. Id.

As to the question of whether Jenkins was a convicted felon subject to 18 U.S.C. § 922(g), the Eleventh Circuit explained:

In Count 3 of the indictment, Jenkins was charged with violating § 922(g), which makes it a felony for a convicted felon to possess a firearm. According to the government, Jenkins was a convicted felon because he previously pleaded guilty to possession of cocaine in Florida. However, although there was a finding of guilt, adjudication was withheld. Jenkins argues that because this adjudication was withheld, his possession-of-cocaine charge should not qualify as a "conviction" under § 922(g).

Clarke, 780 F.3d at 1132. What constitutes a conviction for purposes of 18 U.S.C. § 922(g)(1)"shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." 18 U.S.C. § 921(a)(20).³ "[T]he ... appropriate source of applicable Florida law would be that surrounding Florida's own unlawful possession of firearms by a felon statute, Fla. Stat. Ann. § 790.23." United States v. Chubbuck, 252 F.3d 1300, 1304 (11th Cir.2001). Thus, the question before this Court is whether Florida treats a guilty plea with adjudication withheld as a "conviction" for purposes of section 790.23, Florida Statutes.

The Eleventh Circuit concluded that the Florida Supreme Court has not squarely addressed this issue, but noted that in State v. McFadden, 772 So.2d 1209 (Fla.2000), in a different context, this Court adopted a definition of "conviction" that requires an adjudication of guilt or judgment of conviction by the trial court. Clarke, 780 F.3d at 1132. The Eleventh Circuit also explained that in McFadden, this Court relied on its opinion in State v. Snyder, 673 So.2d 9 (Fla.1996), where we "noted that Florida's felon-in-possession law ‘applies "following an adjudication of guilt in the trial court." ’ " Clarke, 780 F.3d at 1132 (quoting McFadden, 772 So.2d at 1215 n. 5 (quoting Snyder, 673 So.2d at 10 )). The Eleventh Circuit also recognized that Florida's Second and Third District Courts of Appeal have held that, for purposes of section 790.23, Florida Statutes, a conviction requires adjudication. Clarke, 780 F.3d at 1132–33 (citing Castillo v. State, 590 So.2d 458, 461 (Fla. 3d DCA 1991), and State v. Menuto, 912 So.2d 603, 605–06 (Fla. 2d DCA 2005) ).

The reason the Eleventh Circuit certified the question in the instant case was further explained as follows:

Ordinarily, this suggestion from the Florida Supreme Court that a withheld adjudication is insufficient, along with on-point Florida District Courts of Appeal rulings that confirm the suggestion, would be enough for us to find that Jenkins's prior crime was not a conviction under § 922(g). Indeed, we have previously said that "[i]n matters of state law, federal courts are bound by the rulings of the state's highest court. If the state's highest court has not ruled on the issue, a federal court must look to the intermediate state appellate courts." Veale v. Citibank, F.S.B., 85 F.3d 577, 580 (11th Cir.1996) (citation omitted). But the difficulty for us in this case is that this Circuit has held the opposite in at least two earlier cases. In United States v. Orellanes, 809 F.2d 1526 (11th Cir.1987), we said that "one who pleads guilty in a Florida state court and has imposition of sentence withheld, may nevertheless be held to have been ‘convicted’ for purposes of applying federal criminal statutes which punish certain conduct following conviction of a felony." Id. at 1527. We affirmed that holding in United States v. Grinkiewicz, 873 F.2d 253 (11th Cir.1989) (per curiam).

Thus, we find ourselves facing conflicting commands. On the one hand, our prior-precedent rule demands that we follow our prior decisions on this matter. See Chubbuck, 252 F.3d at 1305 n. 7 ("We are not at liberty to disregard binding case law that is so closely on point that has been only weakened, rather than directly overruled, by the [Florida] Supreme Court." (alteration adopted) (quoting Fla. League of Prof'l Lobbyists v. Meggs, 87 F.3d 457, 462 (11th Cir.1996) )). On the other hand, although the Florida Supreme Court has not directly addressed the point, indications from that Court suggest that our holdings in Orellanes and Grinkiewicz are no longer in keeping with Florida law. At least two lower appellate courts in Florida confirm this interpretation. We have noted in a case addressing this same issue: "It has become increasingly clear that perhaps our interpretation of Florida law was either in error or has since changed." Chubbuck, 252 F.3d at 1305.

Clarke, 780 F.3d at 1133. With this background in mind, we turn to determination of the certified question before us.

ANALYSIS

As the Eleventh Circuit has explained, that court is bound to follow its own precedent. Chubbuck, 252 F.3d at 1305. In 2001, relying on its prior decisions in United States v. Orellanes, 809 F.2d 1526 (11th Cir.1987), and United States v. Grinkiewicz, 873 F.2d 253 (11th Cir.1989), the Eleventh Circuit held in Chubbuck that the district court did not err in finding that a charge of felon-in-possession under 18 U.S.C. § 922(g) could be proven where the defendant pled guilty to a felony even though adjudication was withheld. Chubbuck, 252 F.3d at 1305. However, the Eleventh Circuit cautioned in Chubbuck that "[i]t has become increasingly clear that perhaps our interpretation of Florida law was either in error or has since changed, but given the defendant's failure to object and without any definitive authority from the Florida Supreme Court that contradicts our precedent, we decline to, and in fact cannot, find that the district court committed plain error." Chubbuck, 252 F.3d at 1305. In a footnote in Chubbuck, the court explained that under its precedent, a panel cannot overrule "a prior [panel's] holding even though convinced it is wrong." Id. at n. 7 (quoting U.S. v. Steele, 147 F.3d 1316, 1317–18 (11th Cir.1998) (en banc)). The Eleventh Circuit stated, however, that "the prior precedent rule would not apply if intervening on-point case law from either this Court [the Eleventh Circuit] en banc, the United States Supreme Court, or the Florida Supreme Court existed." Id. at n. 7 (bracketed material added).

Again, in the present...