A. P. GORDON, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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A. P. Gordon was convicted of unlawfully selling intoxicating beverages under a statute that elevated the offense to a felony based on an alleged prior conviction. The Florida Supreme Court reversed, holding that the State must produce the actual record of the prior conviction, not merely testimony about it, to support a second offense that enhances the penalty.
The State must produce the actual record of the prior conviction judgment, not merely testimony about it, to support a charge of second offense. Testimony from a court clerk regarding the existence of a prior conviction is insufficient; the judgment itself must be presented as conclusive evidence of the prior conviction.
“In a criminal prosecution every essential element of the offense charged must be proven by competent evidence; and the best evidence reasonably obtainable should be adduced.”
Establishes the foundational principle that the State must use the best available evidence to prove all elements of a crime.
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Join FLexlaw to unlock all legal intelligenceGordon was charged under Section 5486 with unlawfully selling intoxicating beverages and alleged to have a prior conviction for unlawfully possessing …
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Whitfield, P. J.
The plaintiff in error was under Section 5486, Revised General Statutes, 1920, convicted on an information charging the unlawful sale of “intoxicating beverage,” it being also alleged that he had theretofore been convicted “of the. crime of unlawfully having in his possession, custody and control intoxicating liquors.” This being a felony under the statute, the maximum penalty of imprisonment for three years in the State penitentiary was imposed.
In a criminal prosecution every essential element of the offense charged must be proven by competent evidence; and the best evidence reasonably obtainable should be adduced.
Without objection the State produced testimony of the Clerk of the Criminal Court of Record that the records of the Court showed that the defendant had previously been convicted as alleged. The record was not produced, though apparently it was immediately accessible.
To support an indictment charging the defendant with a second offense of a like character, it is necessary for the State in proof of the latter allegation to produce the record of the prior judgment of conviction. Norwood v. State, 80 Fla. 613, 86 South. Rep. 506.
In a prosecution for a second offense “where the second conviction virtually raises a misdemeanor to the grade of a felony, which is to result in incarcerating the accused in the penitentiary for a period of from two to five years, and where such second conviction is made absolutely dependent on a former one, a decent regard for the rights and liberty of the accused, however humble his station in life, ought to, and does, require that nothing less than a judgment of conviction, plainly setting forth the former offense, and adjudging the accused guilty thereof, will suffice as a basis for the second prosecution. At common law, where it is proposed to show a person incompetent to testify as a witness by reason of having comniitted an infamous crime, it is the judgment, and that only, which is received, as the legal and conclusive evidence of the party’s guilt. 1 Greenl. Ev. (14th ed.) Sec. 375. And surely an equally stringent rule should prevail where the consequences of a former judgment are far more serious, as in the present instance.” State v. Brown, 115 Mo. 391, 22 S. W. Rep. 367; Morgan v. Commonwealth, 170 Ky. 400, 186 S. W. Rep. 132; Underhill’s Crim. Ev. Sec. 778.
Reversed.
West and Terrell, J. J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.
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Citator
Cited By (11 total)
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Cross v. State, 96 Fla. 768 (Fla. 1928)…he accused pleads not guilty to an information accusing him as an habitual offender, or stands mute, it would then be incumbent upon the State to prove the allegations of such information, just as any other original information. See Gordon v. State, 86 Fla. 255, 97 So. R. 428. It is apparent that' the answers of the defendant on his cross-examination were not the source of the prosecutor’s knowledge upon which he filed the second information. "When the defendant denied that he had been previously convicte…
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Ellis v. State, 100 Fla. 27 (Fla. 1930)…dict of guilty. Smith v. State, 75 Fla. 468, 78 So. R. 530; Johnson v. State, 81 Fla. 783, 89 So. R. 114; Harris v. State, 75 Fla. 527, 78 So. R. 526; Pensacola [*30] Lodge, etc., v. State, 74 Fla. 498, 77 So. R. 613; 86 So. R. 506; Gordon v. State, 86 Fla. 255, 97 So. R. 428; Kauz v. State, 124 So. R. 177. See also State v. Barnes, 24 Fla. 153, 4 So. R. 560; Demens v. Poyntz, 25 Fla. 654, 6 So. R. 261. While there might be some ground for relaxing this rule somewhat as to the record evidence of judgment o…
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Reynolds v. State, 111 So. 285 (Fla. 1926)…vided, of course, the identity of the defendant was established as the person so formerly convicted". The defendant further contends that under the rule announced *Page 1044 in Norwood v. State, 80 Fla. 613; 86 South. Rep. 506; and Gordon v. State, 86 Fla. 255, 97 South Rep. 428, the proof of defendant's previous conviction was insufficient. The minute book of the Criminal Court of Record of Polk County showing the minutes of said Court for February 20, 1925, was produced, and upon identification thereof…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Columbus Norwood v. State, 80 Fla. 613 (Fla. 1920)