Sneed v. State, 80-645

• Decision Date: 25 March 1981
• Docket Number: No. 80-645,80-645
• Citation: 397 So.2d 931
• Parties: James B. SNEED, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 931

397 So.2d 931

James B. SNEED, Appellant, v. STATE of Florida, Appellee.

No. 80-645.

District Court of Appeal of Florida, Fifth District.

March 25, 1981.

Rehearing Denied May 13, 1981.

James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Phillip D. Havens and James Dickson Crock, Asst. Attys. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

Appellant raises two issues in attacking his conviction for grand theft. He contends that the evidence was insufficient to support the jury's verdict and that the trial court erred in allowing the prosecutor to submit evidence of a specific unrelated crime for which appellant was previously convicted. We find no merit in the first point, but agree on the second issue and reverse.

The evidence relied on to support the conviction was that on Saturday, August 18, 1979, appellant finished his shift at the gas station where he was employed, and having arranged to go fishing with a friend, took with him two money bags containing the station's cash receipts, for the avowed purpose of dropping them off at the night depository box of the bank. Appellant and his friend stopped at the bank, but appellant did not deposit the bags. On the way to their fishing destination, they stopped at a convenience store so that appellant could make a phone call. There is dispute in the evidence about some of the events. For example, appellant testified that he did not deposit the money at the bank because he discovered an error in the deposit slip, and didn't have another one; his companion testified that appellant indicated the depository was jammed. Appellant testified that when he stopped at the convenience store he left the bags in the van; his companion stated that appellant took the bags with him. There is no dispute that appellant did not deposit the money in the bank and that he took the bags with him on the fishing trip.

Appellant and his friend fished that day with the bags close by, and slept in the van that night. When they awoke the next morning, the money bags were gone. His companion suggested they call the police, but since appellant was on parole and out of his county without permission, he demurred. Instead, they continued fishing a while longer and then appellant asked his companion to help him fake a robbery to explain the missing money. His friend decided he could not go through with it and after appellant staged the robbery, reported the incident to the police. Appellant eventually admitted his false report.

Appellant testified at the trial, and his counsel asked him why he wanted to fake the robbery. Over the State's objection, appellant responded that while he had been in jail before awaiting trial on another matter, he had been the victim of a homosexual rape and didn't want to go back to jail. The State on cross examination then asked him the nature of the crime for which he had been tried and convicted, and over defense objection, appellant responded that he had been convicted of assaulting his daughter. Appellant now contends that permitting this testimony was prejudicial and warrants reversal.

In attempting to impeach a witness (including a testifying defendant), the State may elicit information as to that witness's previous criminal convictions. The questioning is limited to determining if the witness has previously been convicted of a crime, and if so, how many times. If truthfully answered, the State can go no further. McArthur v. Cook, 99 So.2d 565...