Nichols v. State

• Decision Date: 04 February 1970
• Docket Number: No. 68--201,68--201
• Citation: 231 So.2d 526
• Parties: James R. NICHOLS, a/k/a Robert Nichols, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 526

231 So.2d 526

James R. NICHOLS, a/k/a Robert Nichols, Appellant, v.STATE of Florida, Appellee.

No. 68--201.

District Court of Appeal of Florida, Second District.

Feb. 4, 1970.

Rehearing Denied March 9, 1970.

Mosley & Donahey, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Morton J. Hanlon, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

In this case, appellantJames R. Nichols, also known as Robert Nichols, appeals to this Court from a judgment and sentence entered after a jury trial finding him guilty of a second violation of the State beverage laws.

On January 25, 1968, amended information was filed in the Pinellas County Circuit Court charging Nichols in six counts with violation of the beverage laws.All six counts charged unlawful sales of intoxicating beverages by Nichols without his having the prerequisite State beverage license for such purpose, and were all identical except that the various counts alleged different dates of such sales and different brands of beverages.All the counts alleged the previous conviction of Nichols on August 30, 1965 in the Civil and Criminal Court of Record of said County for 'violation of the beverage laws'.

After trial by jury he was acquitted on count one and convicted on counts two to six inclusive.He was adjudged guilty of the latter counts and was sentenced to imprisonment for a term of six months to three years on each count, to run concurrently.From this judgment of conviction Nichols appeals to this Court.We affirm.

Four points are urged here for reversal, which we will discuss seriatim.

Point 1.Nichols contends that it was improper 'to permit a prior conviction and a current offense to be presented to a jury at one and the same time, whether by reading an information, or by evidence, even under a second offender statute', and that to do so constituted 'a violation of due process, the right to a fair and impartial trial and an attack upon the defendant's character and reputation'.There is no merit to this contention.

Nichols admits that the case of Barnhill v. State, Fla.1949, 41 So.2d 329, and the cases therein cited, State ex rel. Lockmiller v. Mayo, 1924, 88 Fla. 96, 101 So. 228;Benson v. State, 1924, 88 Fla. 103, 101 So. 231, andCoulson v. State, 1933, 110 Fla. 279, 149 So. 521, 522, are authority contrary to his contention.We have examined Barnhill and the other cases and find that they abundantly support the action of the trial Judge in the case sub judice in submitting to the jury not only the guilt or innocence of Nichols as to the latest offenses charged but also as to the historical fact of his previous conviction of a beverage law violation.Indeed, the cited cases make it the Duty of the trial Judge to not only make known to the jury the alleged fact as to such former conviction, but that the jury must make a specific finding thereon.

Nichols in his brief argues tht 'it is time * * * that this matter be brought back to the attention of the Courts in view of some later decisions and in view of some out of State decisions'.We are not persuaded that we should depart from, much less presume to overrule, the established principles laid down by our Supreme Court in the stated cases.Such has no place in an ordered judiciary.This point is not well taken.

Point 2.After the jurors had been deliberating about an hour, they returned to the court room and reported to the Judge they had reached a verdict.The Judge examined the 'verdict' and, apparently finding that it contained no reference to the previous conviction in the Civil and Criminal Court of Record, inquired of the jurors whether their verdict meant to convict Nichols of the offenses charged in counts II to VI, which included the previous conviction.Each juror in open Court indicated his or her intention to so convict.

The Judge then explained in meticulous detail the function of the jury in the situation presented, whereupon the jury again retired to the jury room and thereafter returned into open Court its verdict of guilty upon the stated five counts as charged, which verdict was duly published.No objection was made as to such procedure, although counsel for Nichols did make a 'proffer outside the presence of the jury', the nature of which 'proffer' was not made clear.No error is apparent, certainly no reversible error.

Aside from the failure to object, it is apparent from the record that the jury when it first returned to the Court room, was confused by the references in the information to the previous charge of violating the beverage laws and his conviction thereof, and that the jurors, or some of them, were under the impression that they were charged with...