Williams v. State, 85-2724
| Decision Date | 17 July 1987 |
| Docket Number | No. 85-2724,85-2724 |
| Citation | 511 So.2d 1017,12 Fla. L. Weekly 1745 |
| Parties | 12 Fla. L. Weekly 1745 Theodore WILLIAMS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Theda R. James, Asst. Atty. Gen., Tampa, for appellee.
Williams appeals his conviction and sentence for burglary of a dwelling.
The court declared Williams to be a habitual felony offender, departed from the guidelines recommended range of community control or 12-30 months in prison and sentenced Williams to 30 years in prison.
Williams raises four points on appeal. He contends that the trial court erred: (1) in prohibiting defense counsel's prospective rehabilitation of Williams on direct examination; (2) in imposing judgment and sentence for burglary of a dwelling, a second degree felony, when the jury found him guilty of burglary, a third degree felony; (3) in departing from the guidelines recommended sentence without providing written reasons for departure; and (4) in finding him to be a habitual felony offender without making the requisite specific findings of fact. We agree and reverse.
During the trial the court prohibited defense counsel from asking Williams, on direct examination, questions about his prior felony convictions of grand theft and burglary. However, on cross-examination, the State asked Williams whether he had ever been convicted of a crime. When he answered affirmatively, he was then asked how many times. He responded, "I have been convicted one time but I have admitted to two." Williams was then, over objection, asked if he was the same person convicted of grand theft on February 9, 1984. Williams admitted that he was. He was then asked if he was the same person convicted of burglary on March 1, 1984. He answered that he was convicted of trespass.
We find that the court erred in prohibiting defense counsel from inquiring on direct examination about Williams' prior record. In Lawhorne v. State, 500 So.2d 519 (Fla.1986), the supreme court ruled that a party may bring out impeaching information on direct examination and attempt to reduce the harmful consequences by explaining the nature or character of the information to rehabilitate the witness. The court held that the defendant was entitled to minimize the anticipated negative effect of his prior convictions by showing how they were obtained, and failure to allow such testimony was harmful error. In Bell v. State, 491 So.2d 537, 538 (Fla.1986), the supreme court approved this court's decision that anticipatory rehabilitation by the state was permissible "to take the wind out of the sails of a defense attack on a witness's credibility."
The court's ruling in this case was especially harmful because the court permitted the state to use improper methods of impeachment on cross-examination of Williams. Section 90.610(1), Florida Statutes (1985) provides in part:
A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, ...
The state's initial question concerning conviction of a "crime" was improper. Section 90.610(1) now restricts inquiry concerning prior convictions to convictions for felonies or for crimes involving dishonesty or a false statement. Cummings v. State, 412 So.2d 436, 439 (Fla. 4th DCA 1982). Because Williams admitted his convictions it was error to allow the state to continue this inquiry and name the prior offenses. Even had Williams denied the convictions, it would have been error...
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