VINCENT RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's trial attorney provided ineffective assistance by failing to object to the prosecutor's questioning about prior convictions, which warrants reversal.
[1] A trial court errs by allowing the State to question a witness about specific prior convictions when the witness admits to having been convicted of a crime.
[2] A prosecutor must impeach a witness regarding prior convictions by introducing certified copies of those convictions into evidence, rather than questioning the witness ab…
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Join FLexlaw to unlock all legal intelligenceVincent Rodriguez was convicted of robbery with a firearm and grand theft based on circumstantial evidence. During cross-examination, the prosecutor q…
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DAVIS, Judge.
Vincent Rodriguez appeals his convictions for robbery with a firearm and grand theft. Due to the circumstantial nature of the case, which turned on the State’s identification evidence and Rodriguez’s credibility as a witness, we must reverse Rodriguez’s convictions and remand this case for a new trial because of prosecutorial misconduct and ineffective assistance of counsel apparent on the face of the record.
Although Rodriguez raises a multitude of issues, we find one issue particularly dispositive and worthy of discussion. We agree that Rodriguez’s trial attorney gave ineffective assistance by failing to object when the prosecutor questioned Rodriguez about his prior convictions during cross-examination. As demonstrated below, this ineffective assistance of counsel is apparent on the face of the record.
At trial, the State introduced circumstantial evidence which allegedly identified Rodriguez-as one of the individuals who robbed a jewelry store with two accomplices. Rodriguez testified in his own defense. During cross-examination, the following exchange took place:
[Prosecutor]: All right. How many times have you been convicted of a felony? [Rodriguez]: Um, I can’t say I remember. But you, earlier on you said around three times, so I’ll take your word for it. [Prosecutor]: Do you remember how many times you’ve been convicted of a felony? [Rodriguez]: It’s been so long ago when I was a juvenile, I am an adult now. [Prosecutor]: What was your status as far as the law at the time you were arrested for this crime? [Rodriguez]: What? Excuse me? What was my status? [Prosecutor]: What was — were you under any legal constraint at the time of your arrest for this charge? [Rodriguez]: A personal injury suit, yes. [Prosecutor]: I am talking about — I am talking about a criminal legal constraint. [Rodriguez]: Legal constraint, um— [Prosecutor]: Probation? Parole? [Rodriguez]: No, ma’am. No, ma’am. [Prosecutor]: And what do you think is going to happen to you if you get convicted here today? [Rodriguez]: If I get convicted here today? Um, I’ll probably go to prison for a while. A long, long time. [Prosecutor]: So you wouldn’t want the jury to find you guilty? [Rodriguez]: I don’t think anybody would want that. [Prosecutor]: You wouldn’t lie to keep from getting convicted, would you? [Rodriguez]: Me? No. [Prosecutor]: But you don’t remember how many times you’ve been convicted of felonies? [Rodriguez]: You had said three times earlier. [Prosecutor]: What were the felonies you were convicted of; do you remember that? [Rodriguez]: Grand theft auto. [Prosecutor]: And? [Rodriguez]: Does that have anything to do with this case here? [Prosecutor]: Sir, it certainly does. What were you previously convicted of? [Rodriguez]: Grand theft auto. [Prosecutor]: And? [Rodriguez]: And robbery. [Prosecutor]: Robbery with a firearm, right? [Rodriguez]: Yes. [Prosecutor]: I don’t have any other questions. We begin our analysis by turning to subsection 90.610(1), Florida Statutes (1997), 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 [one] year under the law under which the witness was convicted, or if the crime involved dishonesty or false statement regardless of the punishment.... When the witness admits his or her convictions, a trial court errs by allowing the State to question the witness about the specific convictions. See Williams v. State, 511 So. 2d 1017, 1019 (Fla. 2d DCA 1987). Even if Rodriguez had denied being previously convicted of a felony, the trial court would have erred by permitting the prosecutor to question Rodriguez about his prior convictions. See id. Rather, the prosecutor should have impeached Rodriguez by entering into the record certified copies of his prior convictions. See id.; White v. Singletary, 717 So. 2d 1054, 1055 (Fla. 3d DCA 1998). Rodriguez’s trial attorney’s failure to object to this questioning fell below any standard of reasonable professional assistance, and there is a reasonable probability that the results of the trial would have been different but for her inadequate performance. See Ross v. State, 726 So. 2d 317, 318 (Fla. 2d DCA 1999). Accordingly, we reverse and remand for a new trial.
CAMPBELL, A.C.J., and BLUE, J„ Concur.
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Eure v. State, 764 So. 2d 798 (Fla. 2d DCA 2000)…estimony as “nonsense” and “bologna” and told the jury the defense counsel presented witnesses who were “pathetic,” “ridiculous,” “inappropriate,” “insulting to the jury’s intelligence,” and who had “just flat out lied.” Also, in Rodriguez v. State, 761 So. 2d 381 (Fla. 2d DCA 2000), this court, on direct appeal, held that defense counsel was ineffective for failing to object when the prosecutor questioned the defendant about his prior convictions. As noted, for this type of claim to be cognizable on direct…
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Flint v. State, 84 So. 3d 469 (Fla. 2d DCA 2012)…ns. See § 90.610(1), Fla. Stat. (2006); Smith v. State, 7 So. 3d 473, 500 (Fla.2009) (reiterating that questioning witness about nature and underlying facts of prior conviction of witness for impeachment purposes is not allowed); Rodriguez v. State, 761 So. 2d 381, 383 (Fla. 2d DCA 2000) (explaining that when witness admits convictions, trial court errs by allowing State to question witness about the specific convictions; even if witness denies being previously convicted of felony, trial court would err by pe…
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Stallworth v. State, 53 So. 3d 1163 (Fla. 1st DCA 2011)…convictions. That is what the State should have done here. Consequently, the trial court here abused its discretion by allowing the State to continue questioning Ducree as to the exact nature of all eight of his convictions. See Rodriguez v. State, 761 So. 2d 381, 383 (Fla. 2d DCA 2000) (holding, “When the witness admits his or her convictions, a trial court errs by allowing the State to question the witness about the specific convictions. Even if [the witness] had been denied being previously convicted of a…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ross v. State, 726 So. 2d 317 (Fla. 2d DCA 1998)
- Williams v. State, 511 So. 2d 1017 (Fla. 2d DCA 1987)
- White v. Singletary, 717 So. 2d 1054 (Fla. 3d DCA 1998)