US v. Gispert

• Decision Date: 17 February 1994
• Docket Number: No. 93-6112-CR-ZLOCH.,93-6112-CR-ZLOCH.
• Citation: 864 F. Supp. 1193
• Parties: UNITED STATES of America, Plaintiff, v. Juan GISPERT, Defendant.
• Court: U.S. District Court — Southern District of Florida

864 F. Supp. 1193

UNITED STATES of America, Plaintiff, v. Juan GISPERT, Defendant.

No. 93-6112-CR-ZLOCH.

United States District Court, S.D. Florida.

February 17, 1994.

Kerry S. Baron, Asst. U.S. Atty., West Palm Beach, FL, for plaintiff.

Reuben Camper Cahn, Asst. Federal Public Defender, Fort Lauderdale, FL, for defendant.

AMENDED ORDER GRANTING JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT PURSUANT TO FED.R.CRIM.P. 29(C)

ZLOCH, District Judge.

THIS MATTER is before the Court upon Defendant, Juan Gispert's, Renewed Motion For Judgment Of Acquittal (DE 37). The Court has carefully reviewed the merits of said motion and the entire record herein.

Defendant Gispert was convicted by a jury of one count of possession of a firearm by a convicted felon, in violation of Title 18 U.S.C. § 922(g)(1).¹ However, Defendant moves this Court for judgment of acquittal asserting that his prior guilty plea, where adjudication was withheld, was not a "conviction" as defined by section 921(a)(20), and that therefore, he was not in violation of section 922(g)(1) as a matter of law.

The Court notes that in considering the Defendant's Motion under Federal Rule of Criminal Procedure 29(c), this Court has reviewed the legal sufficiency of the evidence under the standard articulated by the Eleventh Circuit. Specifically, this Court has drawn all reasonable inferences in favor of the jury's verdict and has then considered whether a reasonable jury could find guilt beyond a reasonable doubt. See United States v. Garate-Vergara, 942 F.2d 1543, 1547 (11th Cir.1991).

After proper review, the Court finds based upon the undisputed evidence in the record, that no reasonable jury could find guilt as to Count I, because the government has failed to establish an essential element of the section 922(g)(1) offense. In particular, the only evidence adduced at trial regarding a prior "conviction" was that: (1) the Defendant was charged with a felony in state court; (2) the Defendant pled guilty to the charge; (3) the state court withheld adjudication and placed the Defendant on probation; (4) the Defendant successfully completed his probation; (5) the state court terminated the Defendant's probation; and (6) the state court terminated the criminal proceedings against the Defendant without ever adjudicating the Defendant guilty. All these undisputed events occurred prior to the Defendant's purchase and possession of the firearm in the instant case.

As explained further in this Court's analysis, however, these facts do not constitute a "conviction" for the purposes of section 922(g)(1) as a matter of law. Accordingly, the Court, being fully advised in the premises, GRANTS the Defendant's Motion For Judgment Of Acquittal.

I. Background

It is undisputed that during 1984, Defendant Gispert pled guilty to one count of welfare fraud, a felony, in the Circuit Court of Broward County, Florida, in criminal case number 84-3690CF. Pursuant to Florida Statute § 948.01,² the state court "withheld adjudication" and placed the Defendant on probation. The conditions of the Defendant's probation included a provision that prohibited him from possessing a firearm. However, Defendant's probation officer further instructed him that once he completed his probation, Defendant would not be a convicted felon, and that he could then possess a firearm. The Defendant's probation was terminated on October 9, 1986.

On or about June 16, 1988, the Defendant purchased a firearm from Collazo's Guns and Ammo, Inc., a federally licensed gun dealer. In connection with the purchase of said firearm, the Defendant did not include in his written application that he had been convicted of a felony.

Subsequently, on or about June 15, 1993, and despite the Defendant's successful completion of probation and his honest belief that he was not a convicted felon, the government obtained a two count indictment charging him as follows: (1) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and (2) knowingly making a false statement in connection with the purchase of a firearm from a federally licensed dealer in violation of 18 U.S.C. § 922(a)(6). Following a three day trial, the jury found Defendant Gispert guilty as to count one of the indictment, and not guilty as to count two of the indictment.

Following his conviction, the Defendant filed the instant Motion For Judgment Of Acquittal (DE 37). In his motion, the Defendant argues that he was not a "convicted" felon for purposes of section 922(g)(1). In opposition, the government argues that the Court is bound in this case by Eleventh Circuit precedent, which holds that a withheld adjudication is a "conviction" for the purposes of Title 18 U.S.C. § 922(g)(1). The Court disagrees with the government and finds that the present case is distinguishable from Eleventh Circuit precedent, and in accordance with Florida law, Defendant Gispert is not a "convicted" felon for the purposes of Title 18 U.S.C. § 922(g)(1).

II. Discussion

At the outset, the Court notes that Title 18 U.S.C. § 921(a)(20), specifically defines "conviction" as follows:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter.

(emphasis added). Thus, under the terms of the statute, Florida law determines what constitutes a conviction for the purposes of section 922(g)(1).

A. Eleventh Circuit Precedent

The government argues that the present case is governed by Eleventh Circuit precedent established in United States v. Orellanes, 809 F.2d 1526 (11th Cir.1987), and United States v. Grinkiewicz, 873 F.2d 253 (11th Cir.1989). Relying on this precedent, the government asserts that under Florida law "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." Orellanes, 809 F.2d at 1528. Thus, a person is "considered a convicted felon when there has been a withholding of adjudication of guilt." Grinkiewicz, 873 F.2d at 255. These cases, however, do not apply to the case presently at issue.

While the Orellanes precedent does hold that under Florida law a withheld adjudication of a jury verdict or a plea constitutes a "conviction," this ruling only applies during the interval within which the adjudication remains withheld, that is, during the interval within which the defendant remains on probation. See, e.g., Thomas v. State, 356 So.2d 846, 847 (Fla. 4th DCA) ("If the defendant successfully completes his probation he is not a convicted person but if the probation is violated the court may then adjudicate and sentence.") (emphasis added), cert. denied, 361 So.2d 835 (Fla.1978); United States v. Thompson, 756 F.Supp. 1492, 1495 (N.D.Fla. 1991). However, once the "probationary period expires, the court is divested of jurisdiction over the probationer unless, prior to that time, the appropriate steps were taken to revoke or modify the probation." Davis v. State, 623 So.2d 579, 580 (Fla. 3d DCA 1993); Purvis v. Lindsey, 587 So.2d 638, 639 (Fla. 4th DCA 1991); see also Fla.Stat. § 948.04.³

For example, in the instant case, the Defendant Gispert successfully completed his probation and extinguished the charge against him prior to his possession of the firearm, thus the state court could no longer adjudicate him guilty of welfare fraud. Accordingly, the Defendant Gispert could not become, nor should he be considered as, a "convicted" felon regarding that charge.

The limits of the Orellanes precedent are clear. In Orellanes, the defendant had not successfully completed his probation at the time he possessed the firearm, and thus, the state court had the power to adjudicated him guilty. In light of this power, the withheld adjudication of Orellanes' plea was properly characterized as a felony conviction in his case.

As the Orellanes court noted, when the Congress amended the Firearms Owners' Protection Act, P.L. No. 99-308, and overruled the Supreme Court's decision in Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), it "intended to accommodate state reforms adopted since 1968, which permit dismissal of charges after a plea and successful completion of a probationary period." Orellanes, 809 F.2d at 1528 (quoting Senate Report No. 98-583, 98 Cong.2d Sess. 7 (1984)) (emphasis added). This accommodation of the state reform is not necessary, however, when a defendant undermines the "withheld adjudication" procedure by violating orders of the court, or by committing other crimes while on probation. Accordingly, when the defendant in Orellanes abused the withheld adjudication of his plea under Florida Statute § 948.01 by purchasing weapons illegally, he lost the benefits of that procedure, and was properly defined as a convicted felon.⁴

This reading of Orellanes coincides with the Florida Supreme Court's holding in State v. Gazda, 257 So.2d 242 (Fla.1971), which served as the basis of the Orellanes court's holding. In Gazda, the defendant, on July 28, 1963, entered a plea of guilty to grand larceny, and the Florida court ordered that "adjudication and sentence be withheld and a presentence investigation be ordered." Id. at 243. Prior to sentencing, the defendant became ill, and the court ordered that the defendant be delivered to a hospital for examination and care. However, the defendant never returned for sentencing.

Consequently, on February 2, 1965, the trial judge issued a bench warrant to bring the defendant before the court for sentencing, but the defendant was not returned to state custody until May 1, 1970. Upon his capture, the defendant moved to vacate the court's sentence asserting that Florida Statute § 775.14,⁵ Limitation on...