Clay v. State, 91-1071
| Decision Date | 11 March 1992 |
| Docket Number | No. 91-1071,91-1071 |
| Citation | 595 So.2d 1052 |
| Parties | 17 Fla. L. Weekly D692 Brenda CLAY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Asst. Atty. Gen., West Palm Beach, for appellee.
The state charged appellant with armed robbery and resisting a merchant. The jury found her guilty of the lesser included offense of petit theft and resisting a merchant. The trial court adjudicated her guilty of the two misdemeanors. At sentencing, however, the court reclassified her conviction pursuant to section 812.014(2)(c), based on her prior theft convictions.
Appellant stipulated at pretrial that she had nine prior misdemeanor convictions. The information, however, did not make reference to the prior convictions, nor did it charge her with a felony petit theft. On that ground, appellant contends that the trial court erred when it reclassified her petit theft conviction to felony petit theft. We agree and reverse.
In State v. Rodriguez, 575 So.2d 1262 (Fla.1991), the court stated:
A charging document must provide adequate notice of the alleged essential facts the defendant must defend against. Art. I, Secs. 9, 16, Fla. Const. In recognition of this concern, Florida Rule of Criminal Procedure 3.140(b) provides that an "indictment or information upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." (Emphasis original).
Id. at 1264. The Rodriguez Court then referred to its prior opinion in State v. Harris, 356 So.2d 315 (Fla.1978):
Justice Hatchett concluded for the Court that the felony petit larceny statute "creates a substantive offense and is thus distinguishable from [s]ection 775.084, the habitual criminal offender statute." Harris, 356 So.2d at 316. The felony DUI statute is indistinguishable in this regard.... As in Harris, we conclude that the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI.
....
Having established that the existence of prior DUI convictions is an essential element of felony DUI, it necessarily follows that the requisite notice of prior DUI convictions must be given in the charging document....
The state cites State v. Crocker, 519 So.2d 32 (Fla. 2d DCA 1987) in support of its argument that because it charged appellant with grand theft and the jury convicted her of a lesser included offense of petit theft, the charging document need not allege the prior thefts before an accused may be found guilty of felony petit theft. In Crocker, the court said:
We also agree that when felony petit theft is the only felony with which an accused is charged, the charging document must make clear that felony petit theft is being charged in order to invoke the jurisdiction of the circuit court. State v. Phillips, 463 So.2d 1136 (Fla.1985). We do not agree, however, that prior thefts must be alleged in the charging document and proved in all instances before an accused may be found guilty of felony petit theft. Rather, we agree with our sister court's statement in Peek v. Wainwright, 393 So.2d 1175 (Fla. 3d DCA 1981), that if such a procedure were required, the state would have to charge the crime of felony petit theft, in the alternative, in every case that a jury could find the defendant guilty of petit theft as a lesser included offense of the crime actually charged.
Id. at 33. We find the reasoning in Crocker persuasive, but note that Crocker preceded the supreme court's Rodriguez opinion and its discussion therein of Harris. Based on Rodriguez, we conclude that the state must allege the elements of the felony petit larceny statute in its charging document if it intends to proceed under section 812.014(2)(c).
Accordingly, we hold that the trial court erred when it reclassified appellant's conviction to felony petit theft. We reverse appellant's felony petit theft conviction and and remand this cause to the trial court with instructions to enter a judgment of conviction for petit theft and to sentence appellant consistent therewith.
REVERSED and REMANDED.
FARMER, J., concurs specially with opinion.
I fully agree with Judge Dell's analysis and conclusion. This separate opinion is prompted only because of something he said along the way. I do not find the reasoning in State v. Crocker, 519 So.2d 32 (Fla. 2d DCA 1987), at all persuasive--especially in light of the combined effect of the supreme court's decisions in State v. Harris, 356 So.2d 315 (Fla.1978), and State v. Rodriguez, 575 So.2d 1262 (Fla.1991).
In Harris, a defendant attacked the constitutionality of section 812.021(3), Florida Statutes (1975) 1 by arguing that procedurally it allowed the state to offer evidence to a jury that a defendant had previously been convicted of crimes A and B, from which the jury might infer guilt as to charged crime C. The court noted that "[u]nder section 812.021(3), as interpreted by the State, prior convictions are considered an element of the offense and must be specifically alleged and proved." 356 So.2d at 316.
The court agreed that the statute toyed with the presumption of innocence, but construed it in such a way as to eliminate the problem. The court prescribed a procedure whereby, when one is charged with felony petit larceny under the statute, no evidence of the prior convictions is presented to the jury, and upon conviction the court holds a separate proceeding to determine the fact of prior convictions and any questions of identity. In this regard, the court followed the procedures used under the then habitual criminal offender statute.
Later, in Rodriguez, the issue was:
"whether a charging document must specifically allege three or more prior convictions for Driving Under the Influence (DUI) when charging a defendant with felony DUI to confer jurisdiction on the circuit court and to comply with due process of law."
575 So.2d at 1263. After deciding the jurisdictional issue in the affirmative, the court turned to the due process question. Specifically citing Harris, the court found that the DUI statute was indistinguishable from the felony petit larceny statute. It then expressly applied the Harris reasoning to create an identical bifurcated procedure, whereby the prior convictions must be set forth in the charging document but kept from the jury and considered only in a later proceeding after a conviction.
Crocker was decided between Harris and Rodriguez. In the trial court...
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Young v. State
...1113 (Fla. 2d DCA 1993), which relied upon State v. Crocker, 519 So.2d 32 (Fla. 2d DCA 1987), and noted conflict with Clay v. State, 595 So.2d 1052 (Fla. 4th DCA 1992). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. Jay Robinson Young was found guil......
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Meenaghan v. State, 91-0871
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