SHAW, Chief Justice. We have for review Traylor v. State, 498 So.2d 1297 (Fla. 1st DCA 1986), based on conflict with State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). We have jurisdiction.
After the defense rested, appellant moved for a mistrial urging that this letter was nothing more than an offer to plead guilty inadmissible under section 90.410, Florida Statutes, and constituted plea negotiations made inadmissible by rule 3.172(h), Florida Rules of Criminal Procedure. The court reviewed the case law, including Traylor v. State, 498 So.2d 1297 (Fla. 1st DCA 1986), approved, 596 So.2d 957 (Fla. 1992) and denied the motion. The court observed that the letter itself was not in evidence, and would not go to the jury.
Evidence is admissible under section 90.404(2), Florida Statutes, to show intent, which generally is an ultimate issue in the case. Jensen v. State, 555 So.2d 414, 415 (Fla. 1st DCA 1989), review denied, 564 So.2d 1086 (Fla. 1990); Traylor v. State, 498 So.2d 1297, 1301 (Fla. 1st DCA 1986), approved, 596 So.2d 957 (Fla. 1992); Ehrhardt, Florida Evidence § 404.12 (1992 Ed.). While there must be more than a general likeness between the similar act and the crime charged, "absolute factual identity is not required." Traylor, 498 So.2d at 1301.
Evidence is admissible under § 90.404(2) to show intent, which generally is an ultimate issue in the case. Traylor v. State, 498 So.2d 1297 (Fla. 1st DCA 1986). The more frequently an act is done, the less likely it is that it is innocently done.
Under Florida law, adversary judicial proceedings commence when an indictment or information is filed against a defendant; it is at that time that the sixth amendment right to counsel attaches. Traylor v. State, 498 So.2d 1297, 1300 (Fla. Dist. Ct. App. 1986); see Anderson v. State, 420 So.2d 574, 576 (Fla. 1982) (adversary proceedings commence with indictment of defendant); see also State v. Hoch, 500 So.2d 597, 599 (Fla. Dist. Ct. App. 1986). Although a warrant for Grogg's arrest had been issued in Virginia, he was not formally charged in the advisory proceeding.
Jones v. State, 440 So.2d 570 (Fla. 1983). Because adversary proceedings had not been instituted against the defendant at the time he confessed, the defendant's reliance on Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Traylor v. State, 498 So.2d 1297 (Fla. 1st DCA 1986), is completely misplaced. Second, we see no merit in the defendant's claim that the three-year mandatory minimum sentence imposed on the second-degree murder conviction under Section 775.087(2), Florida Statutes (1985) was improper.
In light of Moran, and because the fourth district decided this issue on a constitutional basis, Sobczak is no longer good law. See Traylor v. State, 498 So.2d 1297 (Fla. 1st DCA 1986) (under Gouveia and Florida Rule of Criminal Procedure 3.140(a), adversary criminal proceedings arise, and the sixth amendment right to counsel attaches, after indictment or information). Some of the cases discussed in this opinion involve a blood test, while others involve a breath test.