
    Henry MARTIN, a/k/a Richard Lees, Appellant, v. STATE of Florida, Appellee.
    No. 87-0134.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1987.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Alfonso M. Saldana, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

A jury found appellant guilty of burglary of a structure and petit theft. He contends that the trial court erred when it denied his motion in limine to exclude evidence of his prior convictions and when it denied his motion for mistrial after the admission of that evidence. We agree and reverse.

Appellant also contends that the trial court erred when it imposed costs since he had been adjudicated insolvent. The state concedes error in the imposition of costs.

At the conclusion of the state’s case, appellant made a motion in limine to preclude the state from asking whether he had been previously convicted of a felony or other qualifying offense. The trial court concluded that the state could ask appellant whether he had ever been convicted of a felony and whether he had ever been convicted of a crime involving dishonesty or false statements, and if the answer to either question was in the affirmative, that the state could ask how many times appellant had been convicted of these crimes. The trial court also informed counsel that without proof of prior convictions, the state could not go beyond that point and ask the witness further questions or imply to the jury that the prosecutor had in his possession evidence of other crimes if it did not have such evidence. The parameters set by the court for questioning on prior convictions coincides with this court’s holding in Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982). Had the state adhered to the trial court’s guidelines on questioning, reversal in this case would not be necessary.

Appellant argued in support of his motion in limine that he had not received any evidence from the state concerning his pri- or convictions and therefore such evidence should be excluded. The record herein shows that the state attorney was steadfast in his belief that he did not have to supply the evidence to appellant:

THE COURT: Do you have evidence on prior convictions?
PROSECUTOR: Your Honor, I believe we had a trial like that before. I do not have to answer until the question comes up. I will do it in good faith. I will be limited to the question I am allowed to ask.
DEFENSE COUNSEL: 3.2200 [sic] requires the state to give all evidence, including rebuttal evidence.
THE COURT: What about that?
PROSECUTOR: If there’s any evidence to be supplied, we do not supply it from every conviction in every county in the United States.
THE COURT: If you intend to use it, aren’t you required to furnish it?
PROSECUTOR: I don’t believe so, Your Honor.
THE COURT: Well, I think you are.
PROSECUTOR: Your Honor—
THE COURT: I think that’s what the rules say.
PROSECUTOR: Yes, Your Honor, what I was going to respond to, in addition, is that in this case, the defense counsel is aware the defendant has at least eight prior felony convictions and that we might be using it and they have the same access to obtaining those certified copies of the judgment as we do.
DEFENSE COUNSEL: Judge, that’s untrue. I have no such knowledge.
THE COURT: All right. Well, we'll just go ahead, then.

After this exchange the trial continued with appellant testifying on his own behalf. He admitted that he had a number of convictions, but he also testified that he could not remember how many he had or the nature of the convictions.« When appellant objected to the state’s cross-examination the court again asked the state whether it had any record of appellant’s convictions. The state responded by producing four original court files and asserted that the convictions contained therein pertained to appellant. At this point appellant asked for and received a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). During the colloquy between court and counsel, appellant argued:

Judge, again just for the appellate purposes, if I had had this information prior to trial, I could have gone over it all with my client. I could have properly prepared him to take the stand. I could have effectively represented him as far as determining whether he should testify. I also could have had an independent examiner possibly if there was a disagreement — I don’t know if we disagree with these documents — to determine whether or not those are his fingerprints.
I have been prevented from doing so by this late discovery.
I have also been prevented from asking voir dire questions that I might have asked related to these prior convictions, so even though it’s not my burden to show procedural prejudice, I am proffering to the court that that is procedural prejudice that I have suffered.

Afterward, the trial court overruled appellant’s objections. The state referred to the judgments of conviction and in one instance disclosed that the conviction was for burglary.

We hold that the trial court erred when it failed to exclude the evidence of prior convictions and when it failed to grant appellant’s motion for a mistrial after the state disclosed that appellant had been convicted of burglary. The strength of appellant’s defense depended upon his credibility since he argued that he was intoxicated and lacked specific intent to commit the crime. Therefore, even though the record contains evidence from which a jury could find that appellant committed the burglary and theft, we think appellant demonstrated sufficient prejudice as a result of the state’s refusal to furnish him with copies of the convictions to preclude the application of the harmless error rule to the facts of this case.

Accordingly, we reverse appellant’s conviction and remand this case for a new trial. The state has conceded the error in the imposition of costs.

REVERSED and REMANDED for a new trial.

STONE, J., concurs.

GLICKSTEIN, J., concurs in part and dissents in part with opinion.

GLICKSTEIN, Judge,

concurring in part and dissenting in part.

I concur with respect to the assessments of costs. In my judgment, it was error to admit evidence of a prior conviction of burglary. Jackson v. State, 498 So.2d 906, 909 (Fla.1986); Williams v. State, 511 So.2d 1017, 1019 (Fla. 2d DCA 1987). However, I conclude that the error as to the evidence of prior conviction was harmless, given the facts in this case, which I emphasize because of the necessity, in my view, of focusing upon the individual case. I could not adopt a per se rule which would require reversal of a conviction proven beyond a reasonable doubt, because evidence of a similar conviction was admitted. There are times, as here, when admission of such evidence is harmless beyond a reasonable doubt. I liken this to a Williams Rule violation that is harmless error in a given case.

At 3:12 a.m. on December 25,1985, Lieutenant Segee received a call of a burglary in progress at a doctor’s office. When Segee arrived at the scene, he observed two white males walk out the back door of the building. Segee shined his flashlight on the two men and stated, “Halt, police.” He had a good view of both individuals. When he identified himself, the shorter of the two men — later identified by Segee as appellant — ran around the northwest corner of the building and out of Segee’s view for a few seconds. After hearing over the radio that the shorter man had been apprehended by another officer, Segee pursued the taller man.

Segee subsequently saw appellant in the back of Officer Conry’s patrol car, and identified appellant as the person he had seen earlier. Appellant was wearing the same type and color coat and jeans as one of the individuals he had observed leaving the doctor’s office.

Officer Conry testified that approximately two seconds after receiving a radio description of the suspect from Lieutenant Segee, he spotted appellant and ran after him. He described the chase and arrest as follows:

Q How much time elapsed from the time you heard it over the radio until the time you saw the person in the brown jacket?
A Probably two seconds, I would say, very short time.
Q Could you speak up?
A About two seconds.
Q All right. And what happened then?
A At that point I chased him from my position here. As soon as I saw him coming from this direction, I chased him from here, came across this house.
Q I have that marked with an arrow showing east direction.
A East direction, across Federal Highway, through the yard here, through the back yard.
Q When you say “yard,” what is this here?
A This is a residence, a private home. Q We will indicate that by the word “home.”
A As I turned around the corner of the building here, he was approximately this far ahead of me. I couldn’t tell you exactly in yards how far he was ahead of me, but as soon as I caught sight of him again, I lost sight of him for about maybe two seconds, he was running down the alley.
I started yelling at him to stop.
As we progressed, he finally stopped across on the south side of 12th Avenue, right in the driveway of this apartment building here.
Q How fast was he running?
A How fast?
Q Yes.
A Very fast.
Q Did he have any problem running?
A No.
Q Did he stumble?
A Not to my knowledge.
Q Did he fall?
A I didn’t see him fall, no.
Q When you lost sight of him for a second or two, just prior to you losing sight of him, did you get an idea, recognition of what he looked like, what he was wearing?
A The brown jacket that Sergeant Se-gee said he was wearing.
Officer Conry then described the statement which the defendant made to him:
Q After you read the defendant his rights, he stated he understood them, what did the defendant state to you, tell the jury, please?
A At that point I asked him if he wanted to tell me what had happened.
He said “Yes, I will tell you.”
He then told me that a friend of his— that he and a friend of his by the name of Nick went into the doctor’s office looking for money.
Q Could you speak up, please?
THE COURT: Is that off?
It’s off. I'm sorry.
THE WITNESS: He told me that he and a friend of his by the name of Nick went into the doctor’s office.
BY MR. WALLSHEIN:
Q Okay. Start over. Let’s just start over.
What did he first say to you?
A I asked him if he would be willing to tell me what had happened, what had transpired prior to his arrest.
He said yes, he would.
He told me that he and a friend of his by the name of Nick, the defendant did not know Nick’s last name, at any rate, the two of them went into the doctor’s office looking for money.
While this Nick was fishing through the receptionist’s desk, Nick — the defendant was acting as a lookout man for him.
Nick had handed him—
Q Handed who?
A Had handed the defendant $7, the defendant told me.
At that point I reached into the defendant’s pockets looking for the $7 and in his right front pocket I found $7 and a small white piece of paper with handwriting on it that had $13 in numbers, numerical.
I took that into evidence.
The defendant told me to gain entry into the building, what they first did was turn off or unscrew the floodlight bulb that was at the southwest corner of the building.
Then they forced their way into the door with a screwdriver. They pried the latch from the door latch on the deadbolt lock, which we have photos of that.
Q Did you have an opportunity to go to that floodlight that was unscrewed?
A Yes. I went to it. I screwed it back in and it worked.
Q It was off at the time you first got to it?
A Yes, it was.
Q When you turned it back, screwed it back in, it turned back on at that point?
A Yes.
Q Was the defendant sweating and nervous at that time?
A Yes, he was very sweaty, panting from running.
Q Was he nervous?
A He appeared to be nervous, yes.
Q Did you smell an odor of an alcoholic beverage coming from the defendant’s mouth?
A Yes, there was an odor of alcohol coming from him.
Q Describe the weakness or strength of that odor?
A It’s really hard to determine. To me it smelled like a strong odor of alcohol. Q Do you have experience and training in terms of people who drive while under the influence of an alcoholic beverage? A Yes, I do.
Q You have had a course in that?
A Yes.
Q You made arrests regarding that?
A Yes, I have.
Q Based upon your experience, is it possible for somebody to have one drink a short time before coming in contact with you and have a strong odor of an alcoholic beverage?
A It’s possible, yes.
Q Was the defendant also breathing heavily upon you?
A Yes, he was.
Q Due to his running?
A Yes.
Q Did the defendant have any difficulty walking?
A No.
Q Everyday walking?
A No, he didn’t appear to have any problems walking.
Q Did the defendant stumble at all?
A No.
Q Did he stagger at all?
A No, he did not.
Q Any signs of intoxication?
A Not that I can recall, no.
Q When the defendant told you this confession of what occurred on March— on December 25, 1985, did he have any problem in talking to you about it, his conversation? Was his speech coherent?
A Yes, his speech was very coherent.
Q Was his speech slurred at all when he spoke with you?
A Not that I can recall, No.

Officer Rothbart was also at the scene, heard appellant describe the details of the burglary to Officer Conry, and testified that appellant had been drinking but did not appear to be intoxicated. No sobriety tests were given to appellant.

Dr. Pelino was called to his office to determine if anything had been taken in the burglary. He was not certain if any money had been taken from petty cash, but he did state that the white slip of paper that appellant had in his pocket contained the handwriting of his secretary.

At trial, appellant testified that he had started drinking at 3:00 p.m. on December 24, 1985. He also consumed some cocaine that day. He testified that he did not recall the burglary, but did recall waking up in the back of the police car. Appellant testified that he was under the influence of alcohol at the time.

Appellant was found guilty as charged of one count of burglary of a structure and of one count of petty theft. He was sentenced to five years with credit for time served as to the burglary conviction and to sixty days with sixty days credit for time served as to the petty theft conviction.  