Summary
In Ziermann, we concluded that a defendant must be permitted to explain that he pled guilty in a prior case because he was guilty, the implication to the jury being that, because he elected to go to trial in the present case, he is not guilty.
Summary of this case from Bowles v. StateOpinion
Case No. 96-2701
Opinion filed July 2, 1997
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mark A. Speiser, Judge; L.T. Case Nos. 93-18039 CF10A 95-22043 CF10A.
John H. Pelzer and Allyson D. Goodwin of Ruden, McClosky, Smith, Schuster Russell, P.A., Fort Lauderdale, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Patricia Ann Ash, Assistant Attorney General, West Palm Beach, for appellee.
While we are not persuaded by appellant's first point on appeal, we are as to his second; therefore, we reverse and remand for new trial.
It was harmful error for the trial court to refuse to permit appellant's counsel to conduct direct examination of his client in accordance with Lawhorne v. State, 500 So.2d 519, 521 (Fla. 1986); Johnson v. State, 679 So.2d 791 (Fla. 3d DCA 1996), rev. denied, 689 So.2d 1070 (Fla. 1997); and Vann v. State, 666 So.2d 176 (Fla. 5th DCA 1995).
The only eyewitness testimony as to what happened was the conflicting testimony of the victim and appellant. Thus, the credibility of appellant was significant in this case. If the defense had been permitted to ask appellant about the substance of his prior convictions, the jury would have learned that appellant's prior convictions concerned credit card fraud, i.e., not sexual assault type offenses. Furthermore, if appellant had been permitted to explain that he pled guilty in the prior case because he was guilty, the implied assertion would be that he was not guilty in this case because he chose to go to trial. Under these circumstances, it cannot be said beyond a reasonable doubt that the trial court's error did not contribute to appellant's conviction.
GLICKSTEIN, KLEIN and PARIENTE, JJ., concur.