SC93037 State of Florida v. Robert Harbaugh

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State: Florida

Court: Supreme Court

Docket No: sc93037

Case Date: 03/09/2000

Plaintiff: SC93037 State of Florida

Defendant: Robert Harbaugh

Preview:Supreme Court of Florida
No. SC93037
STATE OF FLORIDA,
Petitioner,
vs.
ROBERT HARBAUGH,
Respondent.
[March 9, 2000]
PER CURIAM.
We have for review a district court’s decision on the following question,
certified to be of great public importance.
WHERE A DEFENDANT REQUESTS THAT THE JURY
DETERMINE THE EXISTENCE OF PRIOR DUI CONVICTIONS
IN A FELONY DUI TRIAL, SHOULD THE BIFURCATED
PROCEDURE OF STATE V. RODRIGUEZ, 575 SO. 2d 1262 (FLA.
1991), BE AMENDED IN LIGHT OF UNITED STATES V.
GAUDIN, 515 U.S. 506 (1995)?
Harbaugh v. State, 711 So. 2d 77, 83 (Fla. 4th DCA 1998).   We have jurisdiction.
Art. V, § 3(b)(4), Fla. Const.   We answer the question in the affirmative.

In State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), this Court established the
procedure whereby a defendant charged with felony DUI, requiring three previous
convictions of misdemeanor DUI in addition to the presently charged DUI,1 must
be tried in a bifurcated process.
We conclude that if a defendant charged with felony DUI elects to be
tried by jury, the court shall conduct a jury trial on the elements of the
single [present] incident of DUI at issue without allowing the jury to
learn of the alleged prior [misdemeanor] DUI offenses.   If the jury
returns a guilty verdict as to that single incident of DUI, the trial court
shall conduct a separate proceeding without a jury to determine, in
accord with general principles of law, whether the defendant had been
convicted of DUI on three or more prior occasions.   All evidence of
the prior DUI convictions must be presented in open court and with
full rights of confrontation, cross-examination, and representation by
counsel.   The trial court must be satisfied that the existence of three or
more prior DUI convictions has been proved beyond a reasonable
doubt before entering a conviction for felony DUI.
Id. at 1266 (footnote omitted).
The import of the Rodriguez decision was that, absent the bifurcated
process, the jury is directly confronted with evidence of defendant’s prior criminal
activity and the presumption of innocence is destroyed and that “[i]f the
presumption of evidence is destroyed by proof of an unrelated offense, it is more
easily destroyed by proof of a similar related offense.”  Id. at 1265 (quoting State v.
Harris, 356 So. 2d 315, 317 (Fla. 1978)).   We found support for the bifurcated
1See § 316.193(2)(b), Fla. Stat. (1995).
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process in Shargaa v. State, 102 So. 2d 814 (Fla. 1958), wherein we explained:
[Based on] our traditional concepts of due process in the
administration of the criminal laws, the State should not be permitted
merely to charge an accused with the commission of a crime and
buttress its current charge with a simultaneous allegation that the
accused had previously been convicted of a totally unrelated crime
committed years before.   It appears to us that the product of such a
procedure would substantially destroy the historical presumption of
innocence which clothes every defendant in a criminal case and in the
mind of the average juror would in a measure place upon the accused
the burden of showing himself innocent rather than upon the State the
responsibility of proving him guilty.
Id. at 816.   Thus, we held in Rodriguez that in the circumstance where a felony
DUI charge contains an element of prior misdemeanor DUI offenses, in order to
protect the defendant’s presumption of innocence, due process allows a trial judge
to make the determination of the existence vel non of the alleged prior
misdemeanor offenses after the jury returns a guilty verdict in the present DUI
charge.   Rodriguez, 575 So. 2d at 1266.
In so holding, we made an unarticulated constitutional tradeoff.   We
preserved the defendant’s presumption of innocence but at the cost of the
defendant’s constitutional right to have the jury and not the trial judge make the
ultimate finding of guilt.   See In re Winship, 397 U.S. 358, 364 (1970).   In United
States v. Gaudin, 515 U.S. 506 (1995), the United States Supreme Court reviewed
this latter issue.
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In Gaudin, the Court was presented with the question of whether it is
constitutional for the trial judge to refuse to submit the question of “materiality”  to
the jury where a defendant is criminally charged with making material false
statements to a federal agency under 18 U.S.C. § 1001.   Gaudin, 515 U.S. 507.   In
analyzing the issue, the Court reaffirmed its previous holding that the Due Process
Clause2 and the Sixth Amendment3 to the United States Constitution require
criminal convictions to rest upon a jury determination that the defendant is guilty
of every element of the crime with which the defendant is charged.   Id. at 509-10.4
Examining the Rodriguez bifurcated trial process in felony DUI prosecutions
in light of Gaudin, we hold that in this bifurcated process the jury, not the judge,
must determine the verdict from the evidence presented in the second phase.   In
State v. Woodruff, 676 So. 2d 975, 977-78 (Fla. 1996), we held that in order to
establish the crime of felony DUI there be:   (1) a conviction of the current
misdemeanor DUI; and (2) proof of an additional element of the existence of three
2No person shall be “deprived of life, liberty, or property, without due process of law . . .
.”  U.S. Const. amend. V.
                                                                                                    3“In all criminal prosecutions, the accused shall enjoy the right to a speedy and pubic trial,
by an impartial jury . . .                                                                          .”  U.S. Const. amend. VI.
4The Court then applied the well-settled law to the circumstance of a materiality finding
necessary in the criminal false statement charge and held that the materiality of the alleged
statement was an element of the offense; therefore, the jury had to determine whether the alleged
statement was material in order to find the accused guilty.  See Gaudin, 515 U.S. at 522-23.
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or more prior misdemeanor DUI convictions.   § 316.192(2)(b), Fla. Stat.   Given,
therefore, that every element of felony DUI must be proven to the satisfaction of
the jury beyond a reasonable doubt, the jury, unless waived by the defendant, must
decide the issue regarding the three prior convictions.   See Gaudin, 515 US. at 523-
24 (Rehnquist, C.J., concurring).   It follows then that felony DUI trials must be
conducted before the jury in two stages because the concern remains about tainting
the consideration of the current misdemeanor DUI with evidence concerning the
past DUI.5
We caution that the State may only submit a certified copy of each judgment
in order to evidence a defendant’s prior DUI convictions and shall not develop the
facts underlying any such offense unless the defendant contests the validity thereof
at trial.   See State v. Vasquez, 419 So. 2d 1088 at 1091; Parker, 408 So. 2d 1037 at
1038.   Furthermore, based on our recent decision in Brown v. State, 719 So. 2d 882
(Fla. 1998), the State and the trial court should accept a defendant’s stipulation to
three prior misdemeanor DUI convictions.   As in Brown, where a defendant
stipulates to the three prior DUI convictions, the State’s burden of proof for that
element is satisfied.   Id.   We likewise make clear that the defendant may not
5We recognize that Florida Rule of Criminal Procedure 3.430 provides that “after the
jurors have retired to consider their verdict the court shall not recall the jurors to hear additional
evidence.”  This rule does not apply to this bifurcated process, which contemplates two separate
verdicts by the same jury.
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collaterally attack the prior convictions in the second phase of these trials.
Finally, we hold in accord with Neder v. Unites States, 119 S. Ct. 1827
(1999), that a Gaudin error is subject to harmless error review.   As stated in Neder:
In a case such as this one, where a defendant did not, and apparently
could not, bring forth facts contesting the omitted element, answering
the question whether the jury verdict would have been the same absent
the error does not fundamentally undermine the purposes of the jury
trial guarantee.
. . . [A] court, in typical appellate-court fashion, asks whether
the record contains evidence that could rationally lead to a contrary
finding with respect to the omitted element.   If the answer to that
question is “no,”  holding the error harmless does not “reflec[t] a
denigration of the constitutional rights involved.”  [Rose v. Clark, 478
U.S. 570, 577 (1986)].
We therefore answer the certified question in the affirmative and remand this
case to the district court for further proceedings in accord with this opinion.
We decline to address the State’s argument that the district court erred in
ordering a new trial on another ground.   Therefore, we find no basis for disturbing
the district court’s decision, and it is approved.
It is so ordered.
HARDING, C.J., and WELLS, ANSTEAD and PARIENTE, JJ., concur.
SHAW, J., dissents with an opinion.
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SHAW, J., dissenting.
I respectfully dissent from the majority opinion because I am convinced that
defendants charged with felony DUI are not entitled to a bifurcated trial.   The
parties agree that three prior misdemeanor DUI convictions are an element of
felony DUI.   See § 316.193(2)(b), Fla. Stat. (1995); State v. Rodriguez, 575 So. 2d
1262, 1265 (Fla. 1991)("[P]rior DUI convictions [are] an essential element of
felony DUI . . .                                                                         .").   This being the case, we are then faced with the issue of
whether an element of a crime may be presented after the jury retires to consider its
verdict.   Florida Rule of Criminal Procedure 3.430 answers the question negatively
by disallowing the recall of a jury in order to give it additional evidence on the
charged offense after it retires to consider the verdict.   See id. (“After the jurors
have retired to consider their verdict the court shall not recall the jurors to hear
additional evidence."); Scott v. State, 664 So. 2d 3, 4 (Fla. 3d DCA 1995)("The
presentation of new evidence after the court submits the cause to the jury is
improper.").   In felony DUI prosecutions, therefore, the State must present its
evidence of the charged offense-including that of prior DUIs-in a unitary trial.
The majority of states that have considered the question of bifurcation
regarding felony drunk driving offenses that include prior like offenses as an
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element have held that such defendants are not entitled to a bifurcated trial.6   Use
of a unitary trial would be consistent with other offenses where the State proves-in
a single continuous proceeding-the existence of a prior conviction as a necessary
element of the charged offense.7   See Parker v. State, 408 So. 2d 1037, 1038 (Fla.
6 See State v. Geschwind, 666 P.2d 460, 462-63 (Ariz. 1983)(holding that because prior
conviction for DWI is an element of charged felonious second DWI offense, the defendant was
not entitled to a bifurcated trial on each charge, evidence of the first offense was necessarily
admissible pursuant to the state's burden of proving all the elements of the crime charged, and, for
the same reasons, the evidence was not unfairly prejudicial); State v. Lugar, 734 So.2d 14, 16 (La.
Ct. App. 1999); Weaver v. State, 713 So.2d 860, 865 (Miss. 1997)(“[The prior convictions] were
necessary elements of the Felony DUI for which [defendant] was charged in the case sub judice.
Therefore, each had to be proved to the jury in order to obtain a conviction for Felony DUI.”);
People v. Keller, 625 N.Y.S.2d 325, 326 (App. Div. 1995)(holding that evidence of defendant's
prior misdemeanor DWI conviction was properly submitted to a grand jury as evidence of the
defendant's guilt of charged felony DWI); Farmer v. Commonwealth, 390 S.E.2d 775, 776 (Va.
Ct. App. 1990)(holding that "evidence of prior DUI convictions is necessary to prove the
substantive offense of driving under the influence as a third or subsequent offense, and therefore,
is admissible during the guilt stage of a bifurcated trial"-where second half of bifurcated trial
pertained to sentencing); and State v. Fox, No. 25171, 1998 WL 831604, at *2 (W. Va. Nov. 23,
1998).   But see Peters v. State, 692 S.W.2d 243, 245 (Ark. 1985)(holding that a trial for felony
DWI should be bifurcated so that the "jury must first hear evidence of guilt . . . [and if] the
defendant is found guilty of the instance of DWI alleged, the jury will then hear evidence of
previous convictions" even though the convictions constituted an "element" of the instant
offense); Ross v. State, 950 P.2d 587, 591 (Alaska Ct. App. 1997)(stating in dicta that bifurcation
is "recommend[ed]" in such cases even though a unitary trial is "permissible" and "fair").
7   Federal circuit courts of appeal that have considered the issue of bifurcated trials for
defendants charged with possession of a firearm by a convicted felon have consistently rejected
bifurcation.  See United States v. Underwood,  Nos. 95-5441, 95-5442, 1996 WL 536796, at *6
(6th Cir. Sept. 20, 1996); United States v. Nguyen, 88 F.3d 812, 818 (9th Cir. 1996); United
States v. Dean, 76 F.3d 329, 332 (10th Cir. 1996); United States v. Jacobs, 44 F.3d 1219, 1222-
23 (3d Cir. 1995); United States v. Birdsong, 982 F.2d 481, 482 (11th Cir. 1993); United States v.
Collamore, 868 F.2d 24, 28 (1st Cir.1989).  The following reasons are frequently provided:
Any other holding would have three impermissible results.  First, if
the jury did not return a guilty verdict on the possession portion of
the crime, the government would be precluded from proving an
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1982)(recognizing the State’s burden of proving, within a standard unitary trial, the
element of being a convicted felon in a prosecution for possession of a firearm by a
convicted felon), overruled on other grounds, Brown v. State, 719 So. 2d 882 (Fla.
1999).8   Moreover, similar fact evidence is admissible before the jury in a unitary
proceeding if relevant to prove the charged offense notwithstanding that it may be
(and generally is) highly prejudicial.   See Williams v. State, 110 So. 2d 654, 658
(Fla. 1959)(affirming the admission of evidence concerning an alleged prior
unrelated attempted rape based on its relevance to the charged rape).
I also disagree with the majority's conclusion that the failure in this instance
to present evidence of prior DUIs to the jury is harmless error under Neder v.
essential element of the charged offense.  Second, a bifurcated
proceeding would withhold from the jury all knowledge of the prior
felony element of the crime.  Third, the bifurcation order would
require omitting an element of the charged offense from the jury
instructions.  A district court may not eliminate an element of the
crime charged.
Underwood, 1996 WL 536796, at * 6 (quoting United States v. Barker, 1 F.3d 957, 959 (9th Cir.
1993)).   These reasons are also applicable to bifurcation of felony DUI trials under Florida law.
8   Employment of a stipulation pursuant to Brown may better address the concern about
unfair prejudice while maintaining the integrity of trial procedures.  In Brown, this Court held
that the State’s burden of proof as to the element of being a convicted felon (in a prosecution for
possession of a firearm by a convicted felon) could be satisfied by a defendant’s stipulation that
must be accepted by the trial court.  See Brown, 719 So. 2d at 889.  The court would then instruct
the jury-within the same unitary trial-that the element is proven by agreement of the parties.  See
id.  Thus, Brown shows how a stipulation in the instant case may be more sensible and consistent
with Florida precedent than a bifurcated trial resulting in a double verdict.
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United States, 119 S.Ct. 1827 (1999).   The facts in Neder make it easily
distinguishable from the instant case.   Neder was convicted of filing false federal
income tax returns and of federal mail fraud,   wire fraud, and bank fraud.   The
district court erroneously instructed the jury that to convict on the tax offenses it
need not consider the materiality of any false statements even though that language
was used in the indictment.   In other words, the jury was instructed that materiality
“is not a question for the jury to decide.”  In reviewing the error, the Supreme
Court held that an instruction that omits an element of the offense does not
necessarily render a criminal trial fundamentally unfair and is subject to harmless
error analysis.   See id. at 1837.   The Court went on to find that the error in Neder
was harmless because the prosecutor presented the jury with substantial evidence
of the omitted element of materiality such that “no jury could reasonably find that
Neder’s failure to report substantial amounts of income on his tax return was not ‘a
material matter.’”  Id.   This is in stark contrast to the instant case where no
evidence of the missing element (three prior DUIs) was presented to the jury.
Thus, it is impossible for an appellate court to say, as it did in Neder, that the
omitted element was uncontested and supported by overwhelming evidence such
that the jury verdict would have been the same absent the error.   See id.   The
failure to present any evidence of prior DUIs to the jury, therefore, cannot be
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considered harmless error in this instance.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
Fourth District - Case No. 4D97-0298
(Broward County)
Robert A. Butterworth, Attorney General, Celia Terenzio, Senior Assistant Attorney
General, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, Florida,
for Petitioner
Alan T. Lipson of Essen, Essen, Susaneck, Canet & Lipson, P.A., Aventura, Florida,
for Respondent
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