JIMMY MICHAEL MCCLELLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
McClellan appeals his conviction, arguing the trial court erred in ruling on the proper procedure for impeaching a defendant's testimony with prior convictions. The court held the trial judge used an incorrect impeachment procedure under Florida law but found the error harmless because McClellan himself introduced the impeachment evidence during direct examination.
The trial judge erred in his impeachment procedure ruling; proper impeachment under Florida law requires asking two specific questions: 'Have you ever been convicted of a felony?' and 'Have you been convicted of a crime involving dishonesty or false statement?' followed by inquiries about the number of convictions. However, the error was harmless because McClellan himself introduced the impeachment evidence during his own direct examination rather than being exposed to it on cross-examination.
[1] A prior conviction for petty theft may not be used for impeachment if it does not involve dishonesty or false statements.
[2] When impeaching a witness with a prior conviction, the proper procedure involves asking if the witness has been convicted of a felony and, if so, whether the conviction i…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We hold that the trial judge was wrong in his conclusion about the proper procedure to be followed in impeaching a witness under Section 90.610(1), Florida Statutes (1981).”
Establishes that the trial court's impeachment procedure was incorrect under Florida law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePrior to trial, McClellan moved in limine to prohibit the State from using his prior petty theft conviction for impeachment purposes, arguing petty th…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Impeachment By Prior Conviction cases and more on FLexlaw
DOWNEY, Judge.
Prior to voir dire examination of the jury, appellant moved the court in limine to prohibit the State from using appellant’s prior conviction of petty theft for impeachment purposes. Appellant contended that petty theft may or may not involve dishonesty or false statements; if it does not, then it can not be used at trial to impeach defendant. The trial judge concluded that the proper procedure to impeach a witness based on prior convictions is for the prosecutor to ask the witness if he had ever been convicted of a crime. If the witness answers yes, the prosecutor may then ask how many times. If the response is correct, the inquiry ends. The court ruled it was not necessary for the court to inquire about the nature of the crimes nor to determine whether dishonesty or a false statement was involved in appellant’s conviction of petty theft.
During the trial, appellant was asked by his counsel on direct examination whether he had ever been convicted of a crime. He acknowledged that he had. When asked how many times, he answered, “Just twice.” Appellant’s argument on appeal contends that the trial judge’s ruling in limine forced appellant to bring out the convictions on his direct examination as a matter of trial tactics. The State, on the other hand, argues that it never attempted to impeach appellant, but that the incriminating evidence was adduced by appellant during his own direct examination.
We hold that the trial judge was wrong in his conclusion about the proper procedure to be followed in' impeaching a witness under Section 90.610(1), Florida Statutes (1981). However, he did not have the benefit of our opinion in Cummings v. State, 412 So. 2d 436 (Fla. 4th DCA 1982), wherein this court held that such impeachment should be commenced by asking two questions, “Have you ever been convicted of a felony?” and “Have you been convicted of a crime involving dishonesty or false statement?” Then, of course, the number of convictions would be an appropriate inquiry. Cummings also notes that it may be appropriate for the court, out of the presence of the jury, to instruct the witness as to the types of crime involving dishonesty or false statement.
Although the trial judge erred in his ruling regarding the impeachment procedure, we hold the error to be harmless because appellant adduced the impeachment evidence himself. In Hall v. Oakley, 409 So. 2d 93 (Fla. 1st DCA 1982), the trial court’s in limine ruling caused the defendant not to take the witness stand. Being forced into waiving that important right precluded the appellate court from finding harmless error. In the present case, the court’s ruling may have influenced appellant to present the second conviction as a tactical move rather than allow the State to expose appellant’s criminal record on cross-examination. Regardless, under these circumstances, we be- Heve the trial court’s error was harmless. Bracey v. Reynolds, 414 So. 2d 1081 (Fla. 4th DCA 1982).
We have considered appellant’s other point and find no error there. Accordingly the judgment appealed from is affirmed.
BERANEK and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Virgilio Blasco v. State, 419 So. 2d 807 (Fla. 3d DCA 1982)…ed: ‘Have you ever been convicted of a felony?’ and ‘Have you ever been convicted of a crime involving dishonesty or false statement?’ Accordingly, the form of the prosecutor’s question was improper. . . . Id. at 439. See also McClellan v. State, 417 So. 2d 1098 (Fla. 4th DCA 1982). In view of the overwhelming evidence of defendant’s guilt, however, reversal is not appropriate. Houston v. State, 337 So. 2d 852 (Fla. 1st DCA 1976); Lockwood v. State, 107 So. 2d 770 (Fla. 2d DCA), cert. denied, 111 So. 2d 41…
-
Hamilton v. State, 447 So. 2d 1008 (Fla. 5th DCA 1984)…involving dishonesty. The harmless error doctrine has been applied to a similar fact situation, where because of an adverse ruling on a motion in limine, the defendant’s counsel brought out the impeachment testimony himself. See McClellan v. State, 417 So. 2d 1098 (Fla. 4th DCA 1982); So too here, it might be said that the error, if any, was harmless because defendant admitted to a prior felony conviction in addition to the questioned misdemeanor conviction. However, because we feel the necessity to rule on t…
Authorities Cited
- Hall v. The Honorable Thomas D. Oakley, 409 So. 2d 93 (Fla. 1st DCA 1982)
- Cummings v. State, 412 So. 2d 436 (Fla. 4th DCA 1982)
- Cochran v. Cochran, 412 So. 2d 436 (Fla. 4th DCA 1982)
- E. D. Bracey, M.D. v. Reynolds, 414 So. 2d 1081 (Fla. 4th DCA 1982)