JABON SMITH, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Jabon Smith was convicted of violating Florida's prohibition law as a second offender, but the Florida Supreme Court reversed because the state failed to properly prove the prior conviction. Although the evidence of the current offense was sufficient, the record of the first conviction was deficient and did not establish the required prior offense.
The conviction is reversed. While the testimony was sufficient to prove the intoxicating quality of the liquor, the state failed to properly establish the first conviction. The record of the prior conviction did not adequately show the specific offense required under the prohibition statute, making it insufficient to justify imposing enhanced penalties for a second offense.
“Sufficient proof of the first offense in such a case is necessary to justify the imposition of the increased penalities to which a second offender is liable.”
Establishes the court's key holding that a second offender conviction requires proper proof of the prior conviction to justify enhanced penalties.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSmith was indicted, tried, and convicted for violating Florida's prohibition law as a second offender. The current offense involved selling, bartering…
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Ellis, C. J.
Jabon Smith was indicted, tried and convicted for violation of the prohibition law of Florida as a second offender. The judgment is sought to be reversed upon the ground that the evidence was insufficient to establish the intoxicating quality of the liquor and that proof of the first offense was not properly made. There is no merit in the first point. The testimony was sufficient to show that the liquor purchased was whiskey and that it was intoxicating. It was obtained from the accused in a soft drink bottle, examined by the witnesses and pronounced to be whiskey, which is presumed to be intoxicating. See Johnson v. State, 81 Fla. 783, 89 So. R. 114; Purcell v. State, 61 Fla. 43, 55 So. R. 847.
The state attorney called the county judge as a witness to prove the first conviction of the accused. The judge produced his “Criminal Record Book” and turning to a certain page testified that he found a record there of the conviction of the accused “for a violation of the prohibition laws.of the State of Florida.” The page containing that record was offered in evidence. It consisted in part of a record of the judgment entry which recited that “Jabón Smith having plead guilty to the crime of (unlawfully) possessing liquor, the Court adjudges you to be guilty, it is therefore, the judgment of the Court and the sentence of the law,” etc. It appeared that the word “unlawfully” was inserted in the record by the judge the day before the record was introduced in evidence.
Without deciding upon either the legality or propriety of altering the words of a record as was done in this case the sufficiency of the record to establish a former conviction of “manufacturing, selling, possessing for sale or transporting for sale any intoxicating liquor for beverage purposes” obviously failed. See State v. Mayo, 88 Fla. 96, 101 So. R. 228.
The judgment .and sentence entered and imposed in this case were for the offense of “unlawfully selling, bartering and exchanging alcoholic and intoxicating liquor ” as a second offense. Sufficient proof of the first offense in such a case is necessary to justify the imposition of the increased penalities to which a second offender is liable. State v. Mayo, supra.
The judgment is reversed.
Strum and Brown, J. J., concur. Terrell and Buford, J. J., concur in the opinion and judgment.
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Sparkman v. State Prison Custodian, 154 Fla. 688 (Fla. 1944)…lleged in the indictment and accordingly the judgment of conviction was reversed. See State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228; Joiner v. State, 92 Fla. 711, 109 So. 807; Reynolds v. State, 92 Fla. 1038, 111 So. 285; Smith v. State, 96 Fla. 553, 119 So. 145; Langford v. State, 111 Fla. 505, 149 So. 570. The case of State ex rel. Stoutamire v. Mayo, 128 Fla. 843, 175 So. 808, involved a conviction of grand larceny in Duval County, Florida. Stoutamire had been previously convicted on two oc…
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State v. Ellis Dixon, 193 So. 2d 62 (Fla. 2d DCA 1966)…f the instant case upon the merits, it would be incumbent upon the State to, among other things, carry its burden of proving the prior conviction of Dixon of the felony of forgery, and such proof must be technical and specific. Smith v. State, 1928, 96 Fla. 553, 119 So. 145, followed in Ballard v. State, 1928, 96 Fla. 566, 119 So. 146; Timmons v. State, 1929, 97 Fla. 23, 119 So. 393; Coulson v. State, 1933, 110 Fla. 281, 149 So. 522; Clinton v. State, 1940, 143 Fla. 356, 196 So. 684; Sparkman v. State Pris…
Authorities Cited
- State v. Mayo, 88 Fla. 96 (Fla. 1924)
- Johnson v. State, 81 Fla. 783 (Fla. 1921)
- Curley Purcell v. State, 61 Fla. 43 (Fla. 1911)