US v. Thompson

• Decision Date: 04 February 1991
• Docket Number: No. TCR 90-04055-WS.,TCR 90-04055-WS.
• Citation: 756 F. Supp. 1492
• Parties: UNITED STATES of America v. Colin THOMPSON, Defendant.
• Court: U.S. District Court — Northern District of Florida

756 F. Supp. 1492

UNITED STATES of America v. Colin THOMPSON, Defendant.

No. TCR 90-04055-WS.

United States District Court, N.D. Florida, Tallahassee Division.

February 4, 1991.

Richard Newsome, Asst. U.S. Atty., Tallahassee, Fla., for the U.S.

Ronald L. Jones, Sr., Tallahassee, Fla., for Colin Thompson.

ORDER

STAFFORD, Chief Judge.

Before the court are defendant's motion to dismiss (document 12) and supplemental motion to dismiss (document 22). The government has responded in opposition to both motions (documents 20 & 27). Each of the parties has also responded to the court's question concerning the effect of 18 U.S.C. § 921(a)(20) on defendant's request for dismissal (documents 26 & 27).

Pursuant to Title 18, United States Code, Section 922(g)(1), defendant in this case has been charged with four counts of receiving firearms after allegedly having been convicted of a crime punishable by imprisonment for a term exceeding one year. As his alleged predicate "conviction," the defendant pleaded nolo contendere to a charge by the State of Florida of robbery and aggravated battery. Such offenses under Florida law are punishable by a term of imprisonment of more than one year. As is permitted by Section 948.01 of the Florida Statutes, adjudication of guilt was withheld. Defendant was placed on probation and successfully completed probation. Importantly, under Florida law, defendant never lost his civil rights and so never had reason to seek to have those rights restored.

Defendant argues that the instant charges against him should be dismissed because he has not been "convicted" of a felony within the meaning of section 922(g)(1). The court agrees.

DISCUSSION

Section 922(g)(1) of Title 18, United States Code, provides that it shall be unlawful for a person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to receive any firearm which has been shipped or transported in interstate commerce. Section 921(a)(20), as amended in 1986, states that "what constitutes a conviction of a crime punishable by imprisonment for a term exceeding one year shall be determined in accordance with the law of the jurisdiction in which the proceedings were held" — in this case the law of Florida. Indeed, in revising the statute in 1986, Congress made it quite clear that "state law should govern in these matters." S.Rep. No. 98-583, 98th Cong., 2d Sess. 7 (1984). Previously, courts had looked to federal law for the definition of the term "convicted." G.R. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). As indicated by the legislative history of the revised act, the requirement that the term "conviction" be determined under state law was "intended to accommodate state reforms . . . which permit dismissal of charges after a plea and successful completion of a probationary period." S.Rep. No. 98-583, 98th Cong., 2d Sess. 7 (1984).

Review of Florida law indicates that the terms "convicted" and "conviction" are defined differently depending on the context in which they are used. Compare Smith v. State, 75 Fla. 468, 78 So. 530 (1918) (when a person is charged as a second offender, a previous conviction alleged as an element of the second offense must include an adjudication of guilt) with State v. Gazda, 257 So.2d 242 (Fla.1971) (for purposes of construing the statute relating to limitation on withheld sentences, the term "conviction" means determination of guilt by jury verdict or by guilty plea, and does not require adjudication by the court). Significantly, this court has been unable to find any Florida cases which discuss the precise meaning of the terms "convicted" and "conviction" in a context similar to the one at issue here — where a person has pleaded nolo contendere to a felony charge, has had adjudication withheld, has satisfactorily completed his probation, and is thereafter charged with a firearms violation. The Florida statute most analogous to section 922(g)(1), the one making it unlawful for a convicted felon to possess firearms, offers little help because it provides no definition for the terms "convicted" or "conviction." See Fla.Stat. § 790.23. Fortunately, one case, albeit one involving a very different factual situation, offers some insight into the meaning of the terms as used in section 790.23. Burkett v. State, 518 So.2d 1363 (Fla. 1st DCA 1988).

In Burkett, the defendant argued that he should not be considered a convicted felon until his case was affirmed on appeal. The issue arose when defendant was arrested for a firearms violation after he had been tried, convicted and sentenced on other felony charges but before his conviction was affirmed on appeal. While acknowledging that the terms "convicted" and "conviction" have been used in some contexts to represent the determination of guilt resulting either from a plea or trial, regardless of whether adjudication of guilt is withheld, the court held: "A defendant is "convicted," for purposes of section 790.23, when he is adjudicated guilty in the trial court, notwithstanding the fact that he has the right to contest the validity of the conviction by appeal or by other procedures." Burkett, 518 So.2d at 1366 (emphasis added).

While the decision in Burkett is one indication that Florida courts require an adjudication of guilt before a "conviction" can be used as an element of a subsequent offense, the Eleventh Circuit has held just the opposite. Specifically, for purposes of subsequent offenses under the federal gun control laws, the Eleventh Circuit has concluded since 1986 — consistent with its decisions prior to 1986 — that a person who pleads guilty to a felony offense is considered a "convicted" felon under Florida law, whether or not adjudication is withheld. Compare United States v. Bruscantini, 761 F.2d 640 (11th Cir.) (relying on federal law and holding that a nolo plea, adjudication withheld, qualifies as a "conviction" for purposes of a federal prosecution under section 922), cert. denied, 474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985) and United States v. Garcia, 727 F.2d 1028 (11th Cir.1984) (same) with United States v. Grinkiewicz, 873 F.2d 253 (11th Cir.1989) (relying on state law and holding that a guilty plea, adjudication withheld, qualifies as a "conviction" for purposes of section 922(g)(1)) and United States v. Orellanes, 809 F.2d 1526 (11th Cir.1987) (same), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988). In the recent cases, Orellanes and Grinkiewicz, the Eleventh Circuit relied upon language from a Florida Supreme Court opinion construing the statute relating to limitation on withheld sentences. State v. Gazda, 257 So.2d 242, 243-244 (Fla.1971). In that case, the supreme court declared that "for purposes of construing the statute relating to limitation on withheld sentences, the term `conviction' means determination of guilt by verdict of the jury or by plea of guilty, and does not require adjudication by the court." Id. at 243-244.

The Eleventh Circuit did not explain why the chosen definition, expressly limited by the Florida Supreme Court for use in a specific context, would necessarily apply in a different context. Indeed, the Gazda case involved a question quite different from the second offender question presented in Orellanes and Grinkiewicz. The question presented in Gazda was whether a sentence is valid when imposed more than five years from the date a guilty plea is accepted and adjudication withheld. The issue was controlled by section 775.14 of the Florida Statutes which provides as follows:

Any person receiving a withheld sentence upon conviction for a criminal offense, and such withheld sentence has not been altered for a period of five years, shall not thereafter be sentenced for the conviction of the same crime for which sentence was originally withheld.

The issue arose when a defendant wrongfully absented himself from the court's jurisdiction during the period within which he could be sentenced. The defendant had pleaded guilty to a felony, and the court had withheld adjudication and sentencing, instead ordering that the defendant be temporarily delivered to a tuberculosis hospital for examination and care. Upon his release from the hospital, the defendant failed to return to the court for sentencing. He was not located and returned to the court's jurisdiction for sentencing until six years after his plea was accepted. In holding that the trial court's judgment and sentence were valid, the Florida Supreme Court concluded that: (1) the statute was applicable because defendant was indeed "convicted" for purposes of section 775.14; and (2) defendant's sentence was nonetheless appropriate because operation of section 775.14 was tolled during the time defendant's whereabouts were unknown.

While the Eleventh Circuit was apparently untroubled about relying on the Florida Supreme Court's language in Gazda, despite the shift in context, Florida courts have relied on the supreme court's language only once in almost twenty years. Maxwell v. State, 336 So.2d 658 (Fla. 2d DCA 1976). In that case, the court determined that a first offense, whether ending in a guilty plea, a nolo plea, or a jury verdict, is a "conviction" for purposes of punishing a second crime notwithstanding the fact that adjudication was previously withheld. Such decision is consistent with Florida's position that for sentencing purposes, a "conviction" means a "determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended." Fla.R.Crim.P. 3.701(d)(2); see also McCrae v. State, 395 So.2d 1145 (Fla.1980) (for capital sentencing purposes, a plea of guilty without an adjudication of guilt may be used as a "conviction").

Prior to Gazda, the Florida Supreme Court had been fairly consistent in holding that a "conviction" required an adjudication of guilt. For...