US v. Lester

• Decision Date: 12 December 1991
• Docket Number: No. 91-093-Cr-HIGHSMITH.,91-093-Cr-HIGHSMITH.
• Citation: 785 F. Supp. 976
• Parties: UNITED STATES of America v. Gary LESTER, Defendant.
• Court: U.S. District Court — Southern District of Florida

785 F. Supp. 976

UNITED STATES of America v. Gary LESTER, Defendant.

No. 91-093-Cr-HIGHSMITH.

United States District Court, S.D. Florida.

December 12, 1991.

Donald Chase, Asst. U.S. Atty., Miami, Fla., for plaintiff.

David H. Lichter, Kenny, Nachwalter & Seymour, Miami, Fla., for defendant.

ORDER

MARCUS, District Judge.

THIS CAUSE is before the Court on Defendant Gary Lester's Motion to Dismiss Count I of the Indictment. The issue before the court is whether a nolo contendere plea, with adjudication withheld, in a prior state court proceeding is a "conviction" for purposes of the Federal Firearms Statute, 18 U.S.C. § 921 et seq.¹ While we consider this a close and difficult question, we nonetheless conclude that, for the reasons which follow, and based on the particular record presented to this court, Defendant's Motion must be and is GRANTED.

On June 4, 1984, Gary Lester entered a plea of nolo contendere in the Circuit Court of the Eleventh Judicial Circuit to a charge of carrying a concealed weapon, a felony offense. Notably, adjudication of guilt was withheld, and the Defendant was sentenced to a probationary period of two (2) years. Under the terms of his probation, the Defendant was required to receive psychiatric treatment; he was also required to forfeit his gun. In addition, he was required to obtain the consent of his Probation Advisor before changing his residence or employment. On March 29, 1991, a federal grand jury charged the Defendant, by way of superseding indictment, with, among other things, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Defendant moves to dismiss that charge, asserting that his prior nolo contendere plea is not a conviction under Section 922(g).

We observe at the outset that state law governs in determining what constitutes a conviction for these purposes. The Federal Firearms Statute provides in part:

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, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C. § 921(a)(20) (emphasis added). Thus, Florida state law will determine the precise definition of the term "conviction." United States v. Thompson, 756 F.Supp. 1492, 1493 (N.D.Fla.1991). In Thompson, Chief United States District Judge Stafford construed Florida state law, and squarely confronted the precise issue before this Court. There, as here, the defendant pled nolo contendere to state charges, with adjudication withheld, and was later charged with violating Section 922(g). The district court held that, under Florida law, the nolo plea (with adjudication withheld) was not equivalent to a conviction for purposes of Section 922(g). 756 F.Supp. at 1497.

In ascertaining Florida law, the Thompson Court relied primarily on Garron v. State, 528 So.2d 353 (Fla.1988). In that case the Florida Supreme Court concluded that a prior nolo plea was not a "conviction" for purposes of capital sentencing proceedings, noting that:

it does not follow from McCrae v. State, 395 So.2d 1145 (Fla.1980) that a plea of nolo contendere amounts to either a confession of guilt or a "conviction" for purposes of capital sentencing proceedings. A nolo plea means "no contest," not "I confess." It simply means that the defendant, for whatever reason, chooses not to contest the charge. He does not plead either guilty or not guilty, and it does not function as such a plea. None of the factors which go toward evidencing a conviction are present in this case, therefore, the first aggravating factor must fail.

Id. at 360. The Thompson Court found Garron to be the best and most recent statement of Florida law on the issue, and thus extended Garron to the federal firearms context. Thompson also relied on Burkett v. State, 518 So.2d 1363, 1366 (Fla. 1st D.C.A.1988), as evidence that "Florida courts require an adjudication of guilt before a `conviction' can be used as an element of a subsequent offense...." Thompson, 756 F.Supp. at 1493-94. The Defendant here urges the same construction of Burkett. See Def. Reply Memo. at 3.

Chief Judge Stafford also concluded in Thompson that the Federal Firearms Statute itself compelled the same result. The Court observed that 18 U.S.C. § 921(a)(20) "provides that any `conviction' for which a person has had his civil rights restored shall not be considered a `conviction' for purposes of section 922(g)(1)," and thus concluded that "a `conviction' based on a nolo plea, adjudication withheld which never results in a loss of civil rights ... should also not expose a person to section 922 liability." Thompson, 756 F.Supp. at 1497 (emphasis added). In this regard, the Court further noted:

Several Florida Attorney General Opinions confirm that a nolo plea—or any kind of plea—does not result in a loss of civil rights when adjudication is withheld. In 1943, for example, the Attorney General opined that "a plea of guilty or verdict of guilty is insufficient to deprive a person of his civil rights until a judgment of conviction is entered." 1943 Op. Atty.Gen.Fla. 043-343 (Dec. 20, 1943). In a similar vein, in 1949, the Attorney General opined that a defendant does not lose his civil rights when he is not adjudged guilty by the court, regardless of whether he is found guilty by a jury or pleads guilty. 1949 Op.Atty.Gen.Fla. 049-268 (April 8, 1949). In 1964, the Attorney General wrote: "If the court exercises its discretion under this statute to withhold the imposition of sentence and place the defendant on probation without adjudging him guilty, then, of course, he has not been `convicted' and does not lose any of his civil rights even if the crime involved is a felony." 1964 Op.Atty.Gen.Fla. 064-163 (Nov. 6, 1964).

756 F.Supp. at 1497. Finally, in concluding that the defendant there had not lost his civil rights, and was therefore not susceptible to exposure to Section 922 liability, the Court observed that

there appears to be a common perception among persons involved in the Florida criminal justice system that a defendant, for whom adjudication is withheld, has not been "convicted" under Florida law. Probation officers of this court, having served as Florida probation officers before joining the federal system, have confirmed that defendants in Florida are routinely advised by practicing criminal defense lawyers, by state probation officers, by state prosecutors, and by judges, that when adjudication is withheld, they are not "convicted" and accordingly do not lose their civil rights.

756 F.Supp. at 1496. Since we find the language in Garron, the most recent Florida Supreme Court pronouncement on this issue, to be sufficiently broad and unequivocal to fairly extend to the federal firearms context, and since we agree with the Thompson Court's conclusion, we follow Thompson in concluding that, under Florida state law, a nolo plea with a withhold of adjudication is not a conviction for purposes of Section 922(g)(1).

In our analysis of Florida law, we noted that Florida state courts have made statements seemingly contrary to Garron, the principal Florida case relied upon by Thompson.² In order to clarify the apparent ambiguity in Florida law, and to supplement the record, we directed the parties, by Order dated October 28, 1991, to file supplemental briefs on the issue of "whether the Defendant, upon successful completion of probation, was entitled to possess, carry, or own a firearm without obtaining permission from the State of Florida or without formally applying for restoration of his civil rights, or whether such procedures were in fact required." See Order, Oct. 28, 1991. Subsequently, on November 13, 1991, we again referred this cause to United States Magistrate Judge Linnea Johnson "for the limited purpose of conducting a hearing and preparing a Report and Recommendation" regarding this precise issue. See Order, Nov. 13, 1991. The parties submitted affidavits bearing on this issue, and most notably, "the parties specifically agreed that no further evidentiary hearing in light of the affidavits would be required." See Rep. & Rec., Nov. 27, 1991, at 2 (emphasis added).

The Defendant thereafter submitted the notarized affidavit of Dorothy A. Adair, a correctional probation officer with the State of Florida Department of Corrections since 1983, in which Ms. Adair averred that

people who had their adjudication withheld and who were placed on probation in Dade County were allowed and were told they were allowed to possess firearms after their probation ended.... As long as I have been a correctional probation officer, defendants in Dade County have routinely been advised by the state correctional probation officers that when adjudication is withheld, they are not "convicted felons" under state law.

Aff. of D. Adair, at 1-2. In addition, the Defendant submitted his own Declaration, in which he averred that he "was lead to believe that he was not `convicted' as a result of his plea of nolo contendere and the subsequent withhold of adjudication." Decl. of G. Lester. The Government had previously filed, on August 27, 1991, a certificate purportedly "evidencing the non-restoration of the defendant's civil rights," see Govt.Supp. Ex. at 3 (notarized statement of Janet H. Keels, Coordinator of the Office of Executive Clemency of the State of Florida). Pursuant to the Order of October 28, the Government then submitted a memorandum citing to the Rules of Executive Clemency of Florida, which provide, in relevant part:

5. Clemency

At the discretion of the Governor, if a case merits consideration of Executive Clemency for any reason, the Governor

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