Flarity v. State

• Decision Date: 23 June 1988
• Docket Number: No. 87-337,87-337
• Citation: 527 So.2d 295,13 Fla. L. Weekly 1485
• Parties: 13 Fla. L. Weekly 1485 James L. FLARITY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 295

527 So.2d 295

13 Fla. L. Weekly 1485

James L. FLARITY, Appellant, v. STATE of Florida, Appellee.

No. 87-337.

District Court of Appeal of Florida,

Fifth District.

June 23, 1988.

Appeal from the Circuit Court for Seminole County; Kenneth M. Leffler, Judge.

James B. Gibson, Public Defender, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Kevin Kitpatrick Carson, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

AFFIRMED. See Peek v. Wainwright, 393 So.2d 1175 (Fla. 3d DCA 1981). See also Reynolds v. State, 516 So.2d 1094 (Fla. 5th DCA 1987).

ORFINGER, J., and UPCHURCH, F.D., Judge, Retired, concur.

COWART, J., dissents with opinion.

COWART, Judge, dissenting.

In Flarity v. State, 499 So.2d 18, 19 (Fla. 5th DCA 1986), this court reversed Flarity's conviction for robbery and "remanded for judgment and sentence for petit larceny." However, after remand, at the state's request, the trial court sentenced Flarity for felony petit theft. ¹ Flarity appeals, arguing that the charging document charging him with robbery did not allege that he had two or more prior petit theft convictions which convictions are essential elements of the substantive criminal offense of felony petit theft and, therefore, he was never charged with felony petit theft and his sentence for that crime violates his constitutional due process rights.

In State v. Harris, 356 So.2d 315 (Fla.1978), the Florida Supreme Court held (1) that the felony petit theft statute (then section 812.021(3), now section 812.014(2)(c), Florida Statutes--see note 1 below) created a substantive offense, and (2) that the required two or more prior petit larceny convictions are elements of that substantive offense which must be specifically alleged and proved. To avoid jury prejudice against the accused, Harris also held that proof of the prior petit theft convictions can be made to the court in a separate proceeding after the jury finds the defendant guilty of the charged petit larceny offense.

The holding in Harris was not the only construction available. The supreme court could have found that section 812.014(2)(c), Florida Statutes (Supp.1986) (the felony petit theft statute), did not create a separate substantive criminal offense but only provided for an enhanced punishment for a third or subsequent conviction of the substantive offense of petit theft. The difference between these views is far more than semantics and goes to the heart of the most serious double jeopardy and due process problems presented in contemporary criminal cases in Florida. In view of later thinking, it is possible that if the supreme court reconsidered the matter today, it might revise its holding in Harris as to the substantive nature of the offense named felony petit theft. The reason is this: substantively, the offense of felony petit theft bears the identical relationship to the substantive offense of petit theft as grand theft does to petit theft. Likewise, substantively, felony petit theft and grand theft each bears the same relationship to other theft offenses, such as robbery. Petit theft is unquestionably a basic substantive offense and a necessarily lesser offense of all other theft offenses including felony petit theft, grand theft, and robbery. All other theft offenses are aggravated forms of theft and all contain elements not required of petit theft or other theft offenses, i.e., felony petit theft requires prior petit theft convictions, grand theft requires an element relating to value or special property character, and robbery requires an element as to force, violence, or fear. Before Harris was decided in 1978, it was only generally understood that the substantive nature of a criminal offense was determined by its essential constituent elements. Therefore, at that time it was understandable that the court in Harris found that two or more prior convictions of petit theft constituted an essential element of the offense of felony petit theft and, after further finding that this element distinguished the felony petit theft offense from all other offenses, held felony petit theft to be a substantive offense whose elements, including the two or more prior petit theft convictions, must be alleged in the charging document before an accused could be convicted of that offense, whether as a specifically charged offense or a lesser included offense of some greater charged offense. This was the same analysis that supported the 1985 holding in State v. Rodriquez, 500 So.2d 120 (Fla.1986), i.e., because grand theft and robbery each had a different element, each was a substantively different offense and a defendant could be convicted of both offenses based on a single theft without violating constitutional double jeopardy.

However, more recently, further analysis of the elusive concept of "substance" in criminal offenses has suggested that all elements of criminal offenses are not the same. Some are "core" or "nuclear" elements, which describe and differentiate substantive offenses (a single "evil"), while others are "degree" elements (or enhancing factors), which serve only to subdivide one basic substantive offense into degrees of culpability justifying varying levels of punishment. ² Accepting this analysis, but calling the one substantive offense involved in each of two statutes the "same evil," the supreme court in Carawan v. State, 515 So.2d 161 (Fla.1987) receded from Rodriquez and from Rotenberry v. State, 468 So.2d 971 (Fla.1985) and, in Hall v. State, 517 So.2d 678 (Fla.1988), overruled State v. Gibson, 452 So.2d 553 (Fla.1984). ³

In receding from Rodriquez, the court in Carawan stated that the offenses of grand larceny and robbery both "address essentially the same evil., i.e., the taking of property without consent." Id. at 170. If, as Carawan implicitly holds, grand larceny and robbery are in substance but aggravated degrees of the basic substantive offense of petit theft, likewise felony petit theft is not, as was held in Harris, a separate substantive offense but is an aggravated degree of the basic substantive offense of [petit] theft, and the requirement of two or more prior petit theft convictions is but an enhancing factor (or degree element) essential not to a conviction of petit theft, but only to the enhanced punishment provided by statute for petit theft when that offense is aggravated by its commission by a thief who has previously been convicted twice or more of petit theft. ⁴

If the analysis underlying Carawan and Hall ⁵ is applied to the substantive offense of petit theft, as it was when Rodriquez was overruled, Harris should also be overruled. It should be held (1) that [petit] theft is the basic substantive offense the essential elements of which are required by constitutional provisions to be alleged in a charging document and (2) that in order to constitutionally impose the enhanced degree of punishment provided by statute for "felony petit theft," due process requires only that after conviction for petit theft, and before sentencing, the defendant be given notice and opportunity to be heard as to the state's assertion of two or more prior petit theft convictions. In effect, to treat the two or more prior petit theft convictions required for punishment under the felony petit theft statute as "enhancing factors" (degree elements) would be to treat them as conditions precedent to the imposition of an enhanced punishment. This treatment would conceptualize felony petit theft not as a different independent substantive offense, but as an aggravated degree of the underlying or basic substantive crime of [petit] theft in the same manner that prior convictions are used to enhance the maximum statutory punishment under the habitual offender statute ⁶ (section 775.084, Florida Statutes); the wearing of a mask is used to enhance criminal penalties under section 775.0845, Florida Statutes; the use of a weapon or firearm is used to enhance criminal penalties under section 775.087(1), Florida Statutes; assaults and batteries upon an officer or firefighter are used to enhance criminal penalties under section 784.07, Florida Statutes; and the carrying of a weapon or firearm enhances the penalty for robbery ⁷ under sections 812.13(2)(a) and (2)(b), Florida Statutes. ⁸

Until the supreme court reconsiders Harris in light of Carawan, we can neither disregard the holding in Harris nor render a decision on the basis of our understanding of the reasoning in Carawan and Hall because those cases do not consider Harris and such a decision would be inconsistent with Harris. We are constrained by Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

In this case, the state relies on Peek v. Wainwright, 393 So.2d 1175 (Fla. 3d DCA 1981) for the position that when the accused is charged with any felony of which petit theft is a necessarily lesser included offense, if after a jury verdict finds guilt as to petit theft and two or more prior petit theft convictions are proved to the judge, the accused can be lawfully convicted and sentenced for felony petit theft although the charging document does not allege the prior convictions.

Following Peek, the Second District Court of Appeal in State v. Crocker, 519 So.2d 32 (Fla. 2d DCA 1987) also held that prior petit theft convictions do not have to be alleged in the charging document and proved "in all instances" before an accused may be found guilty of felony petit theft. Crocker understood that the reason for the result in Peek was that if the state had to allege the two or more prior petit theft convictions,

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. [emphasis added]

Peek and Crocker address matters which are not problems and fail to address the real problems. The...