Gavins v. State

587 So. 2d 487, 1991 WL 173016
CourtDistrict Court of Appeal of Florida
DecidedSeptember 4, 1991
Docket90-2022
StatusPublished
Cited by24 cases

This text of 587 So. 2d 487 (Gavins v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gavins v. State, 587 So. 2d 487, 1991 WL 173016 (Fla. Ct. App. 1991).

Opinion

587 So.2d 487 (1991)

Lambert Keith GAVINS, Appellant,
v.
STATE of Florida, Appellee.

No. 90-2022.

District Court of Appeal of Florida, First District.

September 4, 1991.
Rehearing Denied September 30, 1991.

*488 Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Lambert Gavins appeals three final judgments in circuit court cases numbered 88-949, 89-569, and 89-1793, adjudicating him guilty of burglary of a structure, grand theft auto, driving without a valid driver's license, and violating probation and community control, and imposing various terms of imprisonment including habitual felony offender[1] sentences in case number 89-1793. Gavins raises three issue on appeal. We reverse as to the second and third issues and remand for a new trial.

On December 27, 1988, in case number 88-949, after Gavins entered a plea of nolo contendere to the charges of grand theft auto and burglary of a structure with intent to commit theft, the circuit court adjudicated him guilty of the offenses and imposed two concurrent five-year periods of probation. On the same day, in case 88-527, Gavins also entered a plea of nolo contendere to the charge of petit theft and was placed on probation for a period of 60 days, to run concurrently with the sentences imposed in case 88-949. On November 3, 1989, in case 89-569, after Gavins entered a plea of nolo contendere to the charge of aggravated assault and the circuit court adjudicated him guilty of that offense, the court revoked his probation in cases 88-527 and 88-949. Gavins was then placed on concurrent two-year periods of community control in cases 88-949 and 89-569, followed by a consecutive one-year term of probation in case 88-527.

On December 11, 1989, the state filed an information in case 89-1793 charging Gavins with burglary of a structure with intent to commit theft, grand theft of an automobile, and operating a motor vehicle without a valid driver's license. The state also filed an affidavit alleging that Gavins had violated the terms of his community control in cases 88-949 and 89-569 by violating numerous conditions of his community control, including the commission of the offenses in case 89-1793.

On March 30, 1990, a jury trial was held with respect to the charges in case 89-1793. After both sides had presented their cases and rested, but prior to the closing arguments, Gavins's defense attorney, Assistant Public Defender Mark Harllee, made a motion for a mistrial based on conflict of interest. Also present at this proceeding were two other assistant public defenders, Mr. Bishop who represented the accomplice Sanford Jenkins in an unrelated matter, and Mr. Loveless, who apparently supervised the other assistant public defenders. Mr. Harllee informed the trial judge that there appeared to be a conflict of interest for the reason that while he was discussing the case with other attorneys at the public defender's office during the lunch break, he learned that Bishop was representing Jenkins in a pending case in another division. Harllee also stated that he had not previously known about the office's representation of Jenkins. Mr. Bishop informed the court that he represented Jenkins in an unrelated matter, an attempted robbery case, and that during that representation he had received confidential information that he revealed to Harllee (apparently during the lunch break), but stated that he could not state the nature of the information. After Mr. Loveless instructed Bishop and Harllee not to reveal the nature of the information, Mr. Loveless told that judge that: "The knowledge that Mr. Bishop gave to Mr. Harllee — if Mr. Harllee had not been in our office, would have been of great value to a defense attorney. It should — it's something *489 that should have been brought up during the cross examination of Mr. Jenkins." Then after stating that he too could not reveal the nature of the conflict for ethical reasons, Loveless stated that "the conflict is not necessarily in the evidence that was presented at trial. It is some information that was not presented at trial, that would have been presented at trial if certain information had been available to Mr. Harllee," and that "[w]e also have other information, your Honor, that has a direct bearing on the case" that is available now that "should have been available to the defense attorney prior to this particular case. It would have been if not for the fact that we represented him." In response to a question from the prosecutor, Harllee informed the judge that he believed that he could effectively give a closing argument based on the evidence presented in the trial. The prosecutor argued that the motion should be denied because there was no showing of prejudice. He pointed out that Harllee had no knowledge of the conflict, Harllee had no conversation with Bishop about the conflict until after the cross-examination of Jenkins, there was no conflict between Jenkins's and Gavins's trial testimony, and Harllee was required to argue during closing only from the evidence that was presented at trial. The trial judge denied the motion, stating that the trial was more important than the conflict and that:

The actual — there's no actual prejudice because of the scenario that the Court heard in the evidentiary portion. I wish it hadn't happen, too, but, I appreciate the frankness and demeanor in coming forth with this. I do not feel like it would be at all proper for the Court to grant a mistrial simply because of the relationship that existed and had no impact at all on what we've done here today. That's the basis for the Court's decision.

On June 25, 1990, the circuit court entered final judgments adjudicating Gavins guilty as charged in case number 89-1793, and guilty of violation of probation and community control in cases numbers 88-527, 88-949 and 89-569, and imposed the following sentences: in case number 89-1793, ten-year terms of imprisonment as a habitual felony offender for the burglary and grand theft auto charges, and a 60-day term of imprisonment for the no valid driver's license charge; in case number 89-569, a three and one half-year term of imprisonment for violating community control on the aggravated assault charge; and in case number 88-949, three and one half-year terms of imprisonment for violating community control on the grand theft and burglary charges. In cases numbers 88-527 and 88-949, the circuit court also entered an order revoking probation.

Gavins argues to us that the circuit court erred in allowing the prosecutor to cross-examine him, over objection, regarding his prior felony convictions and in allowing the prosecutor to name the particular offenses on cross-examination, recross-examination, and during closing argument. He argues that he correctly admitted his five prior felony convictions on direct examination, that he neither misstated nor misled the jury into thinking that he had anything but five prior felony convictions, and thus he did not "open the door" to further inquiry by the prosecutor on cross-examination. He also argues that even if he "opened the door" to further inquiry, the circuit court erred in allowing the prosecutor to name the prior offenses on cross-examination and to emphasize on recross-examination and closing argument that his prior record included the very crimes for which he was on trial.

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Cite This Page — Counsel Stack

Bluebook (online)
587 So. 2d 487, 1991 WL 173016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gavins-v-state-fladistctapp-1991.