Mooney v. State

District Court of Appeal of Florida

Mooney v. State

898 So. 2d 1030, 2005 Fla. App. LEXIS 3196, 2005 WL 562520

CourtDistrict Court of Appeal of Florida

DecidedMarch 11, 2005

DocketNo. 1D04-1211

StatusPublished

This text of 898 So. 2d 1030 (Mooney 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

Mooney v. State, 898 So. 2d 1030, 2005 Fla. App. LEXIS 3196, 2005 WL 562520 (Fla. Ct. App. 2005).

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Opinion

PER CURIAM.

Appellant seeks review of a conviction and sentence for driving under the influence (DUI), her fourth or subsequent violation. She argues that the trial court abused its discretion in admitting evidence of her three previous DUI convictions after finding that appellant “opened the door” to the admission. We agree and, therefore, reverse appellant’s judgment and sentence and remand for a new trial.

A testifying defendant may “open the door” to otherwise inadmissible evidence of prior offenses by offering (1) a trait of the defendant’s good character or (2) misleading or inaccurate testimony. See Robertson v. State, 829 So.2d 901, 912-13 (Fla.2002); Fiddemon v. State, 858 So.2d 1100, 1102 (Fla. 4th DCA 2003); Bozeman v. State, 698 So.2d 629, 630-31 (Fla. 4th DCA 1997). In other words, “to open the door, ‘the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled.’ ” Robertson, 829 So.2d at 913 (quoting Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997)).

In the instant case, the introduction of appellant’s prior convictions did not contradict or correct appellant’s testimony. Therefore, the trial court abused its dis[1031]*1031cretion in admitting evidence of appellant’s prior convictions. See Robertson, 829 So.2d at 913. When a collateral crime is improperly admitted into evidence, it is presumptively harmful and highly inflammatory. See Robertson, 829 So.2d at 913-14; Fiddemon, 858 So.2d at 1102. The State does not attempt to rebut this presumption.

REVERSED and REMANDED for new trial.

WEBSTER, BENTON and POLSTON, JJ., concur.

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PER CURIAM.

Appellant seeks review of a conviction and sentence for driving under the influence (DUI), her fourth or subsequent violation. She argues that the trial court abused its discretion in admitting evidence of her three previous DUI convictions after finding that appellant “opened the door” to the admission. We agree and, therefore, reverse appellant’s judgment and sentence and remand for a new trial.

A testifying defendant may “open the door” to otherwise inadmissible evidence of prior offenses by offering (1) a trait of the defendant’s good character or (2) misleading or inaccurate testimony. See Robertson v. State, 829 So.2d 901, 912-13 (Fla.2002); Fiddemon v. State, 858 So.2d 1100, 1102 (Fla. 4th DCA 2003); Bozeman v. State, 698 So.2d 629, 630-31 (Fla. 4th DCA 1997). In other words, “to open the door, ‘the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled.’ ” Robertson, 829 So.2d at 913 (quoting Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997)).

In the instant case, the introduction of appellant’s prior convictions did not contradict or correct appellant’s testimony. Therefore, the trial court abused its dis[1031]*1031cretion in admitting evidence of appellant’s prior convictions. See Robertson, 829 So.2d at 913. When a collateral crime is improperly admitted into evidence, it is presumptively harmful and highly inflammatory. See Robertson, 829 So.2d at 913-14; Fiddemon, 858 So.2d at 1102. The State does not attempt to rebut this presumption.

REVERSED and REMANDED for new trial.

WEBSTER, BENTON and POLSTON, JJ., concur.

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Bluebook (online)

898 So. 2d 1030, 2005 Fla. App. LEXIS 3196, 2005 WL 562520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mooney-v-state-fladistctapp-2005.

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