U.S. v. Orellanes, 86-5179
Decision Date | 17 February 1987 |
Docket Number | No. 86-5179,86-5179 |
Citation | 809 F.2d 1526 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Reinaldo ORELLANES, a/k/a Reinaldo Orellana, Defendant-Appellant. |
Court | U.S. Court of Appeals — Eleventh Circuit |
James S. Mattson, Key Largo, Fla., for defendant-appellant.
Leon B. Kellner, U.S. Atty., Myra D. Lichter, Sonia O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before KRAVITCH and HATCHETT, Circuit Judges, and MORGAN, Senior Circuit Judge.
We affirm the district court's ruling 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.
On July 28, 1981, Reinaldo Orellanes, the appellant, entered a negotiated plea of guilty of two felonies, possession of marijuana and carrying a concealed firearm, in the Circuit Court of the Eleventh Judicial Circuit of Florida. The Florida court entered an order withholding adjudication pursuant to Florida Statute Sec. 948.01. Orellanes's lawyer in the state court proceeding did not advise Orellanes of potential collateral consequences that could result from his guilty plea.
After entry of the plea, Orellanes purchased firearms and ammunition at Tamiami Gun Shop in Miami, Florida, on January 6, and December 12, 1982; on January 3, 16, and 17, 1984; and on September 16, 1985. On each of the above purchases, Orellanes filled out the required BATF form stating that he had never been convicted of a crime punishable by more than one year imprisonment. The BATF forms provided the government with the information with which it obtained a ten-count indictment against Orellanes.
On October 29, 1985, the grand jury returned an indictment charging Orellanes with eight counts of receipt of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(h)(1) 1 and 18 U.S.C. Sec. 924(a) 2, one count of receipt of ammunition by a convicted felon in violation of the same sections of Title 18, and one count of possession of a controlled substance.
Orellanes filed two motions to dismiss the first nine counts of the indictment. The district court rejected Orellanes's contention that the Florida court's withholding of adjudication prevented a subsequent conviction under 18 U.S.C. Sec. 922(h)(1) and denied both motions. The parties entered into a conditional plea agreement, pursuant to Federal Rule of Criminal Procedure 11(a)(2), to permit appellate review of the denial of Orellanes's pretrial motions. The plea agreement was based upon a stipulated statement of facts and the seven counts pleaded to were the alleged violations of 18 U.S.C. Secs. 922(h)(1) and 924(a). The government dismissed counts III, VII, and X. 3
Orellanes contends that on the effective date of the P.L. No. 99-308, all pending
prosecutions not reviewed by the highest courts with authority to review them will abate. He further contends that Florida's withholding of an adjudication of guilt voids a conviction for these federal offenses. Finally, he contends that Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), should not be retroactively applied.
Initially, we must decide whether the district court properly held Orellanes a "convicted felon" for purposes of 18 U.S.C. Sec. 922(h)(1). Orellanes asserts that a plea of guilty followed by a withholding of adjudication does not constitute a conviction under Florida law or federal law, and therefore, he cannot be found guilty of violating section 922(h)(1). In Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112-13, 103 S.Ct. 986, 991 (1983) (citing Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the Supreme Court affirmed its earlier considerations of whether a guilty plea was sufficient to constitute a conviction stating that
On May 19, 1986, Congress passed Public Law (P.L.) No. 99-308, The Firearms Owners' Protection Act. Section 101(5) of P.L. 99-308 reverses the Supreme Court's decision in Dickerson and
requires that a 'conviction' must be determined in accordance with the law of the jurisdiction where the underlying proceeding was held. This is intended to accommodate state reforms adopted since 1968, which permit dismissal of charges after a plea and successful completion of a probationary period.... Since the federal prohibition is keyed to the state's conviction, state law should govern in these matters.
Senate Report No. 98-583, 98 Cong 2d Sess. 7 (1984).
We now turn to Florida law, as P.L. 99-308, Sec. 101(5) instructs, in our effort to determine whether Orellanes was properly characterized as a "convicted felon." In State v. Gazda, 257 So.2d 242, 243-44 (Fla.1971), the Florida Supreme Court declared that "the term 'conviction' means determination of guilty by verdict of the jury or by plea of guilty, and does not require adjudication by the court." Consequently, we conclude that the district court correctly held that Orellanes was previously "convicted" of a crime punishable by imprisonment for a term exceeding one year.
Orellanes claims that Dickerson cannot be retroactively applied to his guilty plea for the state crimes in 1981. Rejecting an identical argument in United States v. Garcia, 727 F.2d 1028, 1029 (11th Cir.1984), this circuit held
Orellanes contends that upon the effective date of section 101(5) of P.L. 99-308, his entire prosecution will abate, and he will return to the status of a non-felon. However, the general savings provision of 1 U.S.C. Sec. 109 operates to preserve the penalties of a statute in effect when Orellanes committed the charged offenses. 4 Orellane's reliance on Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964), for the proposition that when P.L. 99-308 became law his entire prosecution abated, is erroneous because the Court in Bell did not consider, nor apply, the federal general savings clause in 1 U.S.C. Sec. 109 because the case involved the effect of supervening state and city enactments on convictions for violating a prior state statute.
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