Severing Felon in Possession Charges

September 9, 2021 Don Pumphrey, Jr. Criminal Defense, Seal or Expunge Criminal Record Social Share

In Florida, once you are convicted of a felony, you lose certain rights. The most common right is the right to own or possess a firearm or ammunition. If someone with a felony conviction is found illegally owning a firearm, serious penalties can arise. Additional issues come up when this charge is tried with another charge, like possession of a controlled substance. To learn more about Felon in Possession charges in Florida, click here.

Why Would Severing the Charges Matter?

Severing a charge would mean that the two criminal counts charged would be tried separately, as opposed to at the same trial or proceeding. To some criminal defendants, the idea of severing the charges might not seem urgent. However, it is an important avenue to explore since the jury will have to hear that you or a loved one has a prior felony conviction. This can cause the jury to form preconceived notions about guilt based on that fact alone. Many criminal defendants in Florida pursue the severing of felon in possession charges due to this reason, and to ensure a completely fair and untainted trial.

Does Florida Law Require the Severing of Felon in Possession Charges?

While Florida law does not strictly prohibit trying felon in possession charges alongside others that do not require the proof of prior convictions, many Florida courts have held that “if one of the several charges to be tried is convicted felon in possession … severance should be granted.” While the decision is discretionary, “that discretion is sharply curtailed when it concerns a request to sever a charge of possession … by a convicted felon.”

Essentially, most courts agree that the “better practice” is to “sever a count which requires proof of a prior conviction in order not to deprive a defendant of the presumption of innocence.” Often, the prejudicial effect, or the tainting that such information can have on the fairness of a trial, can result in reversal on appeal.

So, while severing the charges is not required by law, it will be granted in most cases where evidence of prior convictions can result in a prejudicial effect to the defendant.

 Case Illustrations

A few cases are helpful in showing how severing can benefit criminal defendants, and why the lack of severance can impede on the fairness of their trial.

• Fox v. State (Florida)

In Fox v. State, the defendant appealed his conviction, arguing that the trial court erred in denying his motion to sever the charge of convicted felon in possession of a firearm from the other charges. His defense counsel first moved to sever the felon in possession charge before jury selection, and the motion was denied. Then, counsel again tried to sever the charge before the jury was sworn in, and the trial court granted the motion. However, the jurors had already been notified at that point that the defendant has a prior criminal record. Due to this, defense counsel moved for a mistrial, arguing that the jury had been tainted and were then prejudiced against the defendant because of their knowledge of his criminal past. The trial court denied the motion for a mistrial and the defendant was subsequently convicted on all charges.

When the defendant appealed, the court of appeals found that, while granting a motion for a mistrial is within the trial court’s discretion, it would be granted when needed to ensure that the defendant receives a fair trial. The court stated that the trial court should have granted defense counsel’s first motion to sever, and the failure to do so caused defense counsel to reveal to the prospective jurors that the defendant had a criminal record, which was extremely prejudicial and denied the defendant the right to a fair trial. Further, the court elaborated that the reason this error was so prejudicial was because, in order to prove the charge of felon in possession of a firearm, the state must bring in evidence of prior convictions. While these prior convictions would have been admissible to prove the felon in possession charge, the failure to sever the charges so the evidence of priors did not taint the combined charges was prejudicial.

• Old Chief v. United States (United States Supreme Court)

In this United States Supreme Court case, the defendant was charged with many crimes, one of them being felon in possession of a firearm. The defendant offered to admit to the fact of his prior felony conviction so the government would not introduce official records reflecting the specific crime for which his felony conviction was based on. The government refused to accept the stipulation, and introduced the records, ultimately tainting the proceedings against the defendant. The Supreme Court concluded:

“This recognition that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant’s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him. As in this case, the choice of evidence for such an element is usually not between eventful narrative and abstract proposition, but between propositions of slightly varying abstraction, either a record saying that conviction for some crime occurred at a certain time or a statement admitting the same thing without naming the particular offense…. The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant’s admission and underscored in the court’s jury instructions.”

In sum, the Supreme Court held that “[i]n this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction.”

These cases help to illustrate why a court would grant a motion to sever, and why it is so important for criminal defendants to be aware of this option.

Tallahassee Criminal Defense Attorney

It is incredibly important for Florida’s criminal defendants to retain a knowledgeable and experienced criminal defense attorney. If you or a loved one has been charged with any crime in conjunction with a felon in possession charge, you should consult with a seasoned Tallahassee criminal defense attorney to explore your legal options. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience defending against a wide array of criminal charges and will ensure that you or a loved one are afforded a fair trial. Call us today at (850) 681-7777 or send an online message to discuss your case during an open and free consultation with an attorney in our legal team.

This article was written by Sarah Kamide

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