Berch v. State
| Decision Date | 16 April 1997 |
| Docket Number | No. 95-3660,95-3660 |
| Citation | 691 So.2d 1148 |
| Parties | 22 Fla. L. Weekly D942 John BERCH, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
Before NESBITT, JORGENSON and SHEVIN, JJ.
Defendant appeals from a judgment of conviction for felony petit theft and from a habitual offender sentence. We affirm the conviction on the felony petit theft charge, but reverse the trial court's imposition of a habitual felony offender sentence and remand for resentencing.
Defendant was charged with robbery arising from a 1995 shoplifting incident. The State filed a notice of seeking an enhanced penalty under the habitual offender statute. After the jury was sworn, the State moved to amend the information to include written notice that if defendant was found guilty of the lesser included offense of petit theft, defendant was also charged with felony petit theft. The jury found defendant guilty of petit theft; the trial court adjudicated defendant guilty of felony petit theft and sentenced him to five years in state prison as a habitual felony offender.
We find no error in the State's amendment of the information to include the charge of felony petit theft; the record indicates that defendant and his attorney knew that the State intended to seek an enhanced penalty for felony petit theft. Before trial, the court and counsel, in defendant's presence, discussed defendant's prior theft convictions, and the court had referred to those prior convictions as precluding it from approving a proposed plea agreement of twenty months imprisonment as a habitual offender.
However, the trial court erred in sentencing defendant as a habitual offender. In 1992, the Florida legislature amended the felony petit theft statute to provide that a person "who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083." § 812.014(2)(d), Fla. Stat. (1993) (emphasis added). Under the pre-1992 statute, a person who was convicted of petit theft "[u]pon a third or subsequent conviction for petit theft" was "guilty of a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084." § 812.014(2)(d) (1991) (emphasis added). The 1992 amendment deleted any reference to section 775.084, the habitual offender statute. The Committee Notes on the 1992 amendment provide that "[T]he changes in the committee substitute provide the person who is prosecuted on an enhanced penalty for petit theft is not subject to habitual offender penalties." Staff of Fla. Comm. On Crim. Just., HB 421 (1992) Staff Analysis 6 (emphasis added). Where the legislature amended the petit theft statute and excluded a prior reference to the habitual offender section, the trial court erred in interpreting the statute to allow a habitual offender sentence.
The omission of a word in the amendment of a statute...
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Nelson v. State
...felony offender sentencing for felony petit theft is precluded. See Ridley v. State, 702 So.2d 559 (Fla. 2d DCA 1997); Berch v. State, 691 So.2d 1148 (Fla. 3d DCA 1997). The trial court in the present case therefore erred in imposing a habitual felony offender sentence for the appellant's 1......
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Wilson v. State, 5D99-2318.
...section 812.014, the legislature clearly intended to eliminate that sentencing option for felony petit theft. The Berch v. State, 691 So.2d 1148, 1149 (Fla. 3d DCA 1997) opinion referred to the legislative committee notes to the amendment which explained that a person prosecuted for enhance......
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Turner v. State, 3D12–830.
...applied to an offense that did not statutorily provide for habitual offender sentencing under section 775.084); Berch v. State, 691 So.2d 1148 (Fla. 3d DCA 1997) (same). Affirmed. 1. The trial court may impose a habitual offender sentence if the defendant had previously been convicted of tw......
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Grimes v. State, 98-3087.
...Category 1, lesser included offense of robbery. See § 924.34, Fla. Stat. (1997); Fla. Std. Jury Instr. (Crim.) 386; Berch v. State, 691 So.2d 1148, 1149 (Fla. 3d DCA 1997); Curry v. State, 510 So.2d 317 (Fla. 4th DCA We find no merit in the additional point raised by Grimes and affirm the d......
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Tough times in the sunshine state.
...offense petit theft is not subject to habitual offender penalties, since the crime has already been "enhanced." See Berch v. State, 691 So. 2d 1148 (Fla. 3d D.C.A. 1997). However, a conviction for felony petit theft may be utilized as a qualifying "prior" under [sections] 775.084. See McFad......