ERNEST CRAFT, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1983-12-07
No. 83-766
SCHEB, A.C.J., and CAMPBELL, J., concur.
441 So. 2d 704 Florida District Court of Appeal, Second District (1983) Positive Treatment
Cited by 20 cases

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Holding

The trial court erred in denying the appellant's motion to sever the charge of possession of a firearm by a convicted felon from other charges, as the proof of a prior felony conviction was unfairly prejudicial to the other charges.


Headnotes

[1] Severance of a charge of possession of a firearm by a convicted felon should be granted liberally when prejudice is likely to flow from refusing the severance, as proof o…

[2] Proof of a prior felony conviction is unfairly prejudicial when introduced in a joint trial for possession of a firearm by a convicted felon and other offenses, as it dep…

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Facts & Procedural History

Ernest Craft, Jr. was charged with aggravated assault with a firearm, carrying a concealed firearm, and possession of a firearm by a convicted felon. …

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Opinion of the Court
RYDER, Judge.

RYDER, Judge.

The issue presented for our consideration is whether the trial court committed reversible error by denying the appellant’s motion to sever trial on the offense of possession of a firearm by a convicted felon from trial on two other charges. We find that the trial court did err in this regard.

The charges arose from the following scenario: Ernest Craft, Jr. was arguing with several individuals. He produced a firearm from his pocket and pointed it at James Williams and Cecil Johnson. The police were called to the scene. The officers found Craft as well as the firearm, and Craft was arrested.

In January 1983, Craft was charged by information with aggravated assault with a firearm, carrying a concealed firearm, and possession of a firearm by a convicted felon. Prior to the start of his jury trial, Craft moved for severance of the possession charge. The trial court denied this motion. The jury found Craft guilty of improper exhibition of a dangerous weapon (a lesser included offense to the aggravated assault with a firearm charge), carrying a concealed firearm, and possession of a firearm by a convicted felon.

In order to obtain a conviction for possession of a firearm by a convicted felon, the state must prove that the individual charged is in fact a previously convicted felon. See Ferguson v. State, 379 So. 2d 163 (Fla. 3d DCA 1980); Dowling v. State, 210 So. 2d 280 (Fla. 2d DCA 1968). Here, evidence was introduced from which the jury could properly conclude that Craft had been convicted of a felony.

Craft has argued to this court that the probative value of the evidence necessary to prove that he was a convicted felon was outweighed by the prejudice which would be inherent during a single trial on all the charges. Craft thus concludes that severance of the charge of possession should have been ordered. See Fla.R.Crim.P. 3.152(a)(2).

The state has responded that the motion to sever was untimely as it was made immediately prior to the commencement of the trial, and severance is a discretionary matter for the trial court. Crum v. State, 398 So. 2d 810 (Fla.1981).

The Florida Supreme Court has recently discussed requests for severance where one of the offenses charged is possession of a firearm by a convicted felon. In State v. Vazquez, 419 So. 2d 1088 (Fla.1982), our high court stated that a “severance should be granted liberally when prejudice is likely to flow from refusing the severance.” Id at 1090. As proof of a prior felony conviction was (and is) a necessary element to the possession charge, and that proof was irrelevant in proving the other charges lodged against Vazquez, the court concluded that the introduction of evidence concerning the prior felony conviction was unfairly prejudicial to Vazquez during a joint trial on all charges. Id. at 1091. Severance should have been granted. See also Thomas v. State, 440 So. 2d 581 (Fla.1983); Orr v. State, 380 So. 2d 1185 (Fla. 5th DCA 1980).

Although the firearm was a basis for each of the charges filed against Craft, proof of the prior felony conviction was only relevant on the possession charge. Proof of the earlier conviction was neither relevant nor admissible in proving the other two charges. Orr v. State, supra. Proof of the prior felony conviction was unfairly prejudicial to Craft by depriving him of the presumption of innocence as-to the other charges. Vazquez v. State, supra. Severance of the trial on the possession charge should have been granted; the trial court abused its discretion in denying the motion for severance.

The conviction for possession of a firearm by a convicted felon need not be reversed, and is hereby affirmed. Vazquez v. State, supra. However, as severance should have been granted, the convictions for carrying a concealed firearm and improper exhibition of a dangerous weapon are hereby reversed and remanded for a new trial.1

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

SCHEB, A.C.J., and CAMPBELL, J., concur. . We note that appellant may not be retried for aggravated assault with a firearm. The conviction for improper exhibition of a dangerous weapon, a lesser included offense of aggravated assault with a firearm, acts as an acquittal of the aggravated assault charge and bars retrial on the latter charge. United States v. Larkin, 605 F. 2d 1360 (5th Cir.1979), on reh’g, 611 F. 2d 585 (5th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 793 (1980); Chikitus v. State, 373 So. 2d 904 (Fla.1979); Hicks v. State, 414 So. 2d 1137 (Fla. 3d DCA 1982). Retrial of the conviction for improper exhibition of a dangerous weapon is, of course, permissible.


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Citator

Cited By

  • Little Tommy Tucker v. State, 884 So. 2d 168 (Fla. 2d DCA 2004)
    …ion to grant or deny a motion for severance, that discretion has been sharply curtailed when it concerns a request to sever a charge of felon in possession of a firearm. See Monson v. State, 627 So. 2d 1301, 1302 (Fla. 1st DCA 1993); Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983). Even if consolidation is the “most practical and efficient method of processing” a case, practicality and efficiency should not outweigh a defendant’s right to a fair trial. “The objective of fairly determining a defendant’s inn…
  • Elio Frank Fernandez, Jr. v. State, 570 So. 2d 1008 (Fla. 2d DCA 1990)
    …iven the jury the requested instruction. See Brown v. State, 206 So. 2d 377 (Fla. 1968). Cf. Janus v. State, 477 So. 2d 644 (Fla. 2d DCA 1985) (improper exhibition of a firearm may be a lesser-included offense of aggravated assault); Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983) (improper exhibition of a dangerous weapon is a lesser-included offense of aggravated assault with a firearm). But cf. Mack v. State, 305 So. 2d 264 (Fla. 3d DCA 1974) (improper exhibition of a weapon is not a lesser-included offe…
  • Bush v. State, 543 So. 2d 283 (Fla. 2d DCA 1989)
    …f guilt, and that conviction is affirmed. See, e.g., Parker v. State, 471 So. 2d 1352 (Fla. 2d DCA 1985) (error in denying jury instruction on intoxication affected only those charges to which intoxication would have been a defense); Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983) (error in refusing to sever charge of possession of firearm by convicted felon requires retrial only of offenses where prior record is not an element).2 We affirm Bush’s conviction for one count of throwing a deadly missile into…

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