BRENT ANDREW KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brent King appealed his conviction for dealing in stolen property, challenging the trial court's evidentiary rulings regarding impeachment by prior conviction and jury instructions about possession of stolen property. The appellate court reversed and remanded for a new trial, finding the trial court committed reversible error on both grounds.
The trial court committed reversible error on both grounds. First, under Florida Statute § 90.610(1), impeachment by prior conviction is limited to felonies or crimes involving dishonesty or false statements; the prosecutor improperly forced King to disclose a misdemeanor battery conviction without proper foundation. Second, the instruction on recently stolen property was improper because King's possession was not shown to be personal and exclusive.
[1] A party may impeach a witness by prior convictions only if the crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or a false stat…
[2] A prosecutor must have a good faith basis to believe a witness has a prior conviction before questioning them about it for impeachment purposes.
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the statutory limitation on impeachment by prior conviction, restricting it to felonies or crimes of dishonesty
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Join FLexlaw to unlock all legal intelligenceKing was charged with dealing in stolen property under Florida Statute § 812.019. During trial, the prosecutor asked King whether he had ever been con…
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DAUKSCH, Judge.
This is an appeal from an order withholding adjudication and placing appellant on probation for dealing in stolen property, section 812.019, Florida Statutes (1981). We agree with appellant that the trial court committed reversible error in overruling his objection to the question posed by the prosecutor to the appellant, “You ever been convicted of a crime before?” In impeaching a witness by use of past convictions, the proper question is whether the witness (here the defendant) has ever been convicted of a felony. Section 90.610(1), Fla.Stat. (1981); Cummings v. State, 412 So. 2d 436 (Fla. 4th DCA 1982); Davis v. State, 397 So. 2d 1005 (Fla. 1st DCA 1981). Appellant here was forced by the court and the prosecutor to tell the jury that he had once been convicted of a misdemeanor, battery. That is clearly improper under section 90.610(1) which provides:
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 ....
Error was also committed in permitting the question because the prosecutor lacked knowledge that appellant had been convicted of a crime and lacked evidence to impeach appellant in the event appellant failed to properly admit the conviction. See Cummings v. State, 412 So. 2d at 439. The prosecutor remarked:
BY MR. PHILLIPS: I had no idea what he was convicted of and I would proffer for the record Mr. King’s rap sheet wherein it indicates a shoplifting arrest in 1979, released on bail, no further disposition indicated; assault and battery, held, no further disposition indicated; and a DUI, reckless driving, adjudication unknown. So it shows three arrests, and I, frankly, did not know the disposition and I was merely inquiring of Mr. King what his answer might be. (Emphasis supplied.)
When appellant objected to this improper questioning he adequately preserved the record for appeal. Simpson v. State, 418 So. 2d 984 (Fla.1982).
The trial court also erred in giving a jury instruction regarding an inference to be drawn by the possession of recently stolen property:
Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.
It was error to give this instruction because appellant’s possession was not “personal and exclusive.” Ridley v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981). In fact, it was not shown that the appellant ever really possessed the goods to the extent that he exercised any dominion and control over them, let alone exclusive dominion and control.
The order placing appellant on probation is reversed and this cause is remanded for a new trial.
REVERSED and REMANDED.
COBB and SHARP, JJ., concur.
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Peoples v. State, 576 So. 2d 783 (Fla. 5th DCA 1991)…s still correct, however, in disallowing the evidence. The attorney who seeks to introduce evidence of a prior conviction should have knowledge of the prior conviction and should possess a certified copy of the judgment of conviction. King v. State, 431 So. 2d 272 (Fla. 5th DCA 1983); Cummings v. State, 412 So. 2d 436 (Fla. 4th DCA 1982). While defense counsel argued that neither he nor the state attorney could obtain a copy of the federal conviction, we are unwilling to relax the Cummings rule and substitute…
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Parks v. Zitnik, 453 So. 2d 434 (Fla. 2d DCA 1984)…to answer questions concerning crimes in general, the appellant was forced to reveal that he had been convicted of one or more misdemeanors, e.g., battery. This examination regarding irrelevant criminal incidents was clearly improper. King v. State, 431 So. 2d 272 (Fla. 5th DCA 1983). Assuming arguendo, appellee’s initial question had been properly phrased, appellee should have asked no further questions once the appellant admitted he had been convicted of two, three, or four crimes, unless the answer was un…
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Gamble v. State, 492 So. 2d 1132 (Fla. 5th DCA 1986)…lroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Alvarez v. State, 467 So. 2d 455 (Fla. 3rd DCA), review denied, 476 So. 2d 675 (Fla.1985); Yolman v. State, 469 So. 2d 842 (Fla. 2d DCA 1985). . § 90.610(1), Fla.Stat. (1983); King v. State, 431 So. 2d 272 (Fla. 5th DCA 1983); Barber v. State, 413 So. 2d 482 (Fla. 2d DCA 1982); see 24 Fla.Jur.2d Evidence and Witnesses § 626.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- Ridley v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981)
- Jollie v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981)
- Cummings v. State, 412 So. 2d 436 (Fla. 4th DCA 1982)
- Cochran v. Cochran, 412 So. 2d 436 (Fla. 4th DCA 1982)
- Davis v. State, 397 So. 2d 1005 (Fla. 1st DCA 1981)