Shargaa v. State
| Decision Date | 30 April 1958 |
| Citation | 102 So.2d 814 |
| Parties | Ben Babe SHARGAA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
J. B. Patterson, Fort Lauderdale, for appellant.
Richard W. Ervin, Atty. Gen., David U. Tumin and Edward S. Jaffry, Asst. Atty. Gen., for appellee.
Appellant Shargaa, who was defendant below, seeks reversal of a judgment and sentence to the State Prison following conviction by a jury of the crime of grand larceny and simultaneously finding him to be a second offender under Chapter 775, Florida Statutes, F.S.A.
The principal point which we consider on this appeal is whether a defendant may be charged in one information with having committed a felony upon which he is then about to be tried and having previously been convicted of an unconnected felony in order to lay the basis for punishment as a second offender in the event of his conviction of the currently alleged offense.
By the amended information appellant Shargaa was charged with having been convicted of the felony of issuing a worthless check for more than fifty dollars in the Criminal Court of Record of Broward County on September 28, 1954. See Shargaa v. State, Fla.1955, 84 So.2d 42. In the same information Shargaa was informed against for having committed the offense of grand larceny in Broward County on January 18, 1956. The significant point to note is that there is no allegation that Shargaa was convicted of the alleged subsequent offense. The allegation could not be made simply because the man was being tried for grand larceny under the same information that charged conviction of the prior felony.
Appellant's motion to quash the amended information was denied. He was tried before a jury on the grand larceny charge and in the course of the same trial, the State produced evidence of his prior conviction on the worthless check charge. The jury rendered a verdict finding appellant guilty of grand larceny and in the same verdict found that he had on September 28, 1954, been convicted of the worthless check charge. In addition to the motion to quash, the appellant throughout the trial objected to the evidence of his prior conviction on the worthless check charge. All of his objections were overruled. His motion for a new trial was denied. The trial judge entered a judgment of conviction finding Shargaa to be a second offender and sentenced him to five years in the State Prison as such. Reversal of this judgment is now sought.
The appellant contends that under Section 775.09 and 775.11, Florida Statutes, F.S.A., it is improper to lay in the same information the accusation of an offense upon which the accused is to be tried and simultaneously the allegation of a prior conviction in order to increase the punishment to be prescribed in the event of a conviction of the alleged subsequent offense.
In defense of the information here the State contends that the allegation of a prior conviction of a felony may properly be laid in an information charging one with an offense which allegedly he has committed but for which he has not yet been convicted in order that the trial judge might, in the event of conviction for the alleged subsequent offense, prescribe a sentence authorized by Section 775.09, Florida Statutes, F.S.A.
It should be borne in mind that this is not the customary 'second offender' information which charges two successive convictions of felonies. In the information at hand the State charged that Shargaa had been convicted on the worthless check felony and that he had committed grand larceny. The State informed against him for the second offense but he had not yet been convicted. The evidence which the State relied upon to show the prior conviction of the worthless check felony was submitted to the jury for consideration along with all of the evidence upon which the State relied to convict the appellant of the crime of grand larceny.
The trial judge undertook to advise the jury that the prior conviction of the worthless check felony could not be taken into consideration in their deliberations on the subject of whether appellant has committed grand larceny. However, we think it literally impossible for any jury to eliminate from their thinking any consideration of the separate unconnected crime for which the appellant had been convicted when they deliberated the matter of his guilt or innocence on the charge of grand larceny.
We have many times held that it is harmful error to permit evidence of collateral crimes independent and unconnected with the crime for which the defendant is on trial. Kennedy v. State, 140 Fla. 124, 191 So. 193. There are recognized exceptions to this general rule, such as, where it is proper to connect two crimes as a part of one transaction or where the related crime explains or defines the character of the act charged as to motive or intent. Talley v. State, 160 Fla. 593, 36 So.2d 201. However, we can find no basis for application of the exceptions to the case at bar.
We do not overlook the contention of the State that the allegation of the conviction of the prior crime is inserted in the information merely to lay the basis for the enhanced punishment in the event of conviction of the crime alleged to have been subsequently committed. We understand also that the authorities on the problem at hand are divided. 25 Am.Jur., Habitual Criminals, Sec. 23, p. 270; 42 C.J.S. Indictments and Informations § 145, p. 1066 et seq.
Regardless of the views of some other courts our view is that by the enactment of our habitual criminal statute, as well as by our traditional concepts of due process in the administration of the criminal laws, the State should not be permitted merely to charge an accused with the commission of a crime and buttress its current charge with a simultaneous allegation that the accused had previously been convicted of a totally unrelated crime committed years before. It appears to us that the product of such a procedure would substantially destroy the historical presumption of innocence which clothes every defendant in a criminal case and in the mind of the average juror would in a measure place upon the accused...
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...160, 113 A. 452 (1921); Delaware, Del.Code Ann., Tit. 11, § 3912(b) (Supp.1964); Florida, Fla.Stat.Ann. § 775.11 (1965); Shargaa v. State, Fla., 102 So.2d 814 (1958); Idaho, State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963); Illinois, Ill.Rev.Stat. c. 38, §§ 603.1—603.9 (1963), Ill.Rev.Sta......
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