Peter J. Madden, Madden & Soto, Mobile, AL, for Defendant-Appellant.

Maria Murphy, Greg Bordenkircher, Asst. U.S. Attys., Mobile, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior District Judge.

In this action we address the issue of whether a defendant who pleaded nolo contendere in a Florida state court to charges of carrying a concealed firearm and grand theft of a firearm, but whose adjudication of guilt was withheld, is "convicted" of a felony within the meaning of a federal firearm statute.1 We disagree with the district court's holding that such a plea constitutes a "conviction" within the meaning of the statute and, therefore, reverse.

This case presents a question of law which is subject to de novo review in this court. United States v. Terry, 60 F.3d 1541, 1543 (11th Cir.1995). In March 1995, Thomas Richard Willis ("Willis") was indicted in the United States District Court for the Southern District of Alabama, Southern Division, for bank robbery2 ("count one") and possession of a firearm by a convicted felon ("count two"). As his alleged predicate offense, Willis pleaded nolo contendere on April 3, 1989, to felony charges brought against him by the State of Florida in the Circuit Court of Escambia County, Florida, for carrying a concealed firearm and grand theft of a firearm. Following Willis's plea, the state court withheld adjudication of guilt and ordered the defendant to complete one year of probation, pay court costs, and perform 50 hours of community service.

On April 5, 1995, Willis pleaded not guilty to counts one and two of the instant indictment. Subsequently, on April 11, 1995, Willis filed a motion to dismiss count two of the indictment on the grounds that having entered a nolo contendere plea as to the alleged, predicate offenses, he had not been "convicted" of a prior felony as required by 18 U.S.C. § 922(g)(1). This motion was denied by the district court in an order dated April 19, 1995. On Willis's motion for reconsideration, the court again denied his motion to dismiss count two in an order dated May 11, 1995. Thereafter, Willis entered a plea of guilty as to count one and a conditional plea of guilty as to count two pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure.3 On August 10, 1995, Willis was sentenced to 33 months imprisonment on each count to run concurrently, placed on supervised release for a term of three years on each count to run concurrently, and ordered to pay a special assessment of $50.00 for each count and restitution in the amount of $4,360.00 to the bank. A notice of appeal was timely filed. At issue is the validity of the district court's denial of Willis's motion to dismiss count two of the indictment.

Willis contends that count two--possession of a firearm by a convicted felon--should be dismissed because he pleaded nolo contendere to the alleged predicate offenses and that such a plea does not amount to a prior "conviction" within the meaning of 18 U.S.C. § 922(g)(1). This section provides that it shall be unlawful for any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 921(a)(20), added in 1986 as part of the Firearms Owners Protection Act, Pub.L. No. 99-308, 100 Stat. 449, provides in pertinent part: "What constitutes a conviction of [a crime punishable by imprisonment for a term exceeding one year] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held."4 Thus, in this case, Florida law is determinative, and the narrow issue before the court is whether Willis has been "convicted of a crime punishable by imprisonment for a term exceeding one year" under Florida law.

Although the issue of whether a nolo contendere plea without an adjudication of guilt is a conviction within the meaning of Florida law is one of first impression in this court, this issue has been addressed by the United States District Court for the Northern District of Florida in United States v. Thompson, 756 F. Supp. 1492 (N.D.Fla.1991). In United States v. Thompson, 756 F. Supp. 1492 (N.D.Fla.1991). In Thompson, the defendant was charged under section 922(g)(1) with four counts of receiving firearms after having been convicted of a felony. The defendant's prior, alleged "convictions" were nolo contendere pleas to charges brought against him by the State of Florida for robbery and aggravated battery. On the defendant's motion, the court dismissed the four section 922(g)(1) counts, finding that the defendant had not been "convicted" of a prior felony within the meaning of section 922(g)(1). The court explained that since section 921(a)(20) had been added by Congress in 1986, the law of the state in which the proceeding was held determines whether a prior conviction is a "conviction" within the meaning of section 922(g)(1). After an exhaustive review of Florida jurisprudence on the issue, the court concluded: "[W]here, as here, a nolo plea is being used as an essential element of another offense, Florida law would not consider such plea to be a 'conviction'." Id. at 1497. Thompson has since been followed in United States v. Gispert, 864 F. Supp. 1193 (S.D.Fla.1994); United States v. Lester, 785 F. Supp. 976 (S.D.Fla.1991); and Snyder v. State of Florida, 650 So. 2d 1024 (Fla.2d Dist.Ct.App.1995), affirmed, 673 So. 2d 9 (Fla.1996). See also Castillo v. State of Florida, 590 So. 2d 458, 461 (Fla.3d Dist.Ct.App.1991) (holding "conviction" within the meaning of the Florida felon in possession of a firearm law (section 790.23, Florida Statutes (1989)) requires an adjudication of guilt).

The court in Thompson discussed United States v. Grinkiewicz, 873 F.2d 253 (11th Cir.1989), and United States v. Orellanes, 809 F.2d 1526 (11th Cir.1987), cert. denied, 488 U.S. 817, 109 S. Ct. 55, 102 L. Ed. 2d 33 (1988)--the cases relied upon by the government in this appeal--but found these cases inapposite. In Grinkiewicz and Orellanes, the issue was whether a plea of guilty followed by a withholding of adjudication constituted a conviction under Florida law for the purposes of 18 U.S.C. § 922(h)(1).5 Relying on State v. Gazda, 257 So. 2d 242 (Fla.1971), the Orellanes court held "the term 'conviction' means determination of guilt by verdict of the jury or by plea of guilty, and does not require adjudication by the court." Orellanes, 809 F.2d at 1528 (quoting Gazda, 257 So. 2d at 243-44) (internal quotations omitted) (emphasis added). The court in Grinkiewicz stated that it was bound by the explicit holding in Orellanes. Grinkiewicz, 873 F.2d at 254. The Thompson court found Orellanes and Grinkiewicz not to be controlling based on its conclusion that "under Florida law, defendant's nolo plea is not the equivalent of a guilty plea." United States v. Thompson, 756 F. Supp. 1492, 1497 (N.D.Fla.1991) (emphasis added). In reaching this conclusion, the court relied on the following language from Garron v. State, 528 So. 2d 353 (Fla.1988):

The plea of guilty is an absolute condition precedent before the lack of adjudication can be considered a conviction. Here, appellant plead nolo contendere to the aggravated assault charge and received no adjudication of guilt. It does not follow from McCrae [v. State, 395 So. 2d 1145 (Fla.1980), cert. denied, 454 U.S. 1041, 102 S. Ct. 583, 70 L. Ed. 2d 486 (1981) (holding that a "conviction" used as an aggravating factor for the imposition of the death penalty means a plea of guilty even without an adjudication of guilt) ] that a plea of nolo contendere amounts to either a confession of guilt or a "conviction" for purposes of capital sentencing proceedings. A nolo plea means "no contest," not "I confess." It simply means that the defendant, for whatever reason, chooses not to contest the charge. He does not plead either guilty or not guilty, and it does not function as such a plea.

Thompson, 756 F. Supp. at 1496-97 (quoting Garron, 528 So. 2d at 360). Although Garron addressed the issue of whether a nolo contendere plea by the defendant to an earlier charge was an aggravating circumstance for the purposes of imposing the death penalty in a first-degree murder case, its discussion of the effect of the nolo contendere plea under Florida law is clearly applicable to the case at hand. According to Thompson and Garron, as well as Gazda, a conviction under Florida law requires either an adjudication of guilt or a guilty plea. Moreover, a nolo contendere plea is "not the equivalent of a guilty plea." Thompson, 756 F. Supp. at 1497.

We find Chief Judge Stafford's exhaustive review of Florida law on this issue in Thompson to be persuasive. Willis pleaded nolo contendere to the felony charges underlying count two of the present indictment, and adjudication of guilt was withheld. According to the cases discussed above, Willis has not been "convicted" of a felony under Florida law. Therefore, we hold that section 922(g)(1) is inapplicable and that the district court erred in denying Willis's motion to dismiss count two of the indictment.

Despite the recent pronouncement by the Florida Supreme Court in Garron and the Northern District of Florida's Thompson opinion, the government asserts that the district court was correct in finding that Willis had been convicted of a felony within the meaning of section 922(g)(1). The government bases its contention on United States v. Jones, 910 F.2d 760 (11th Cir.1990), and Maxwell v. State, 336 So. 2d 658 (Fla. 2d Dist.Ct.App.1976).6

In Jones, the issue before this court was whether "a prior state court case wherein the defendant enters a nolo contendere plea and adjudication is withheld can be used as a 'conviction' to make the defendant eligible for career offender status under section 4B1.1 of the Sentencing Guidelines."⁷ Jones, 910 F.2d at 761 (emphasis added). The court held that the defendant's prior offense was a conviction for the purposes of Section 4B1.1. However, Jones is not controlling in the case sub judice for the reasons stated in United States v. Mejias, 47 F.3d 401 (11th Cir.1995), a subsequent Eleventh Circuit opinion. In Mejias the issue was whether a plea of nolo contendere to a felony in Florida state court, where adjudication was withheld, constitutes a "prior conviction" for purposes of a sentencing enhancement under 21 U.S.C. § 841(b)(1)(B).8 This court answered affirmatively, stating that "[t]he meaning of the word 'conviction' in a federal statute is a question of federal law unless Congress provides otherwise" and that "there is nothing in [18 U.S.C. s] 921(a)(20) to suggest that Congress intended that the definition of a conviction should depend upon state law, rather than federal law." Id. at 403. Similarly, the statute at issue in Jones, section 4B1.1 of the Sentencing Guidelines, does not indicate that state law should govern its application. Therefore, in Jones, as in Mejias, federal law, not state law, was controlling.

In contrast to the governing statutes in Jones and Mejias, section 922, which is at issue in the present case, provides explicitly "[w]hat constitutes a conviction [for the purposes of this section] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." 18 U.S.C. § 922(a)(2) (emphasis added). Jones and Mejias, by their own terms, applied federal law and, therefore, have no bearing on the issue before us: whether a nolo contendere plea is a "conviction" under Florida law.

Finally, the government submits that Maxwell v. State, 336 So. 2d 658 (Fla. 2d Dist.Ct.App.1976), a 1976 opinion from the Florida Second District Court of Appeals supports its contention that a nolo contendere plea is a conviction under Florida law. Even if this is presumed to be correct, Maxwell has been overruled by the subsequent, more explicit decision by the Florida Supreme Court in Garron v. State, 528 So. 2d 353 (Fla.1988).

Willis was charged with a violation of 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon. As his alleged, predicate "conviction," Willis pleaded nolo contendere to charges brought against him by the State of Florida for carrying a concealed firearm and grand theft of a firearm. 18 U.S.C. § 922(a)(20) states that "conviction" within the meaning of Section 922(g)(1) is to be determined in accordance with the law of the jurisdiction in which the proceeding was held. Florida law provides that a conviction requires either an adjudication of guilt by verdict of the jury or a plea of guilty. Garron v. State, 528 So. 2d 353, 360 (Fla.1988); State v. Gazda, 257 So. 2d 242, 243-44 (Fla.1971); See also United States v. Thompson, 756 F. Supp. 1492 (N.D.Fla.1991). A nolo contendere plea, however, does not amount to confession of guilt. Gazda, 257 So. 2d at 243-44; Thompson, 756 F. Supp. at 1496. Thus, a nolo contendere plea is not a conviction under Florida law. Because Willis had not been "convicted" of a felony under Florida law, section 922(g)(1) is inapplicable, and the district court erred by refusing to dismiss count two of Willis's indictment.

The order of the district court is REVERSED, Willis's conviction under 18 U.S.C. § 922(g)(1) is VACATED, and this case is REMANDED for resentencing in accordance with this opinion.