Lewellen v. State

• Decision Date: 09 October 1996
• Docket Number: No. 95-02306,95-02306
• Citation: Lewellen v. State, 682 So.2d 186 (Fla. App. 1996)
• Parties: 21 Fla. L. Weekly D2203 John LEWELLEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 186

682 So.2d 186

21 Fla. L. Weekly D2203

John LEWELLEN, Appellant, v. STATE of Florida, Appellee.

No. 95-02306.

District Court of Appeal of Florida Second District.

Oct. 9, 1996.

Robert E. Jagger, Public Defender, and Dwight Wolfe, Assistant Public Defender, Clearwater, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Patricia J. Hakes, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

John Lewellen raises seven issues challenging his judgment and sentence for petit theft. We affirm, without discussion, the issues regarding discovery and various evidentiary rulings. We find merit only in Lewellen's contentions that the trial court erred by classifying his conviction as a first degree misdemeanor petit theft and by imposing a court cost that exceeds the amount authorized by statute. Therefore, we reverse and remand.

The state filed a one count information charging Lewellen with grand theft of a motor vehicle, a third degree felony, under section 812.014(2)(c), Florida Statutes (1993). Pursuant to agreement of the prosecutor and defense counsel, the trial court instructed the jury that petit theft is a lesser included offense of grand theft of a motor vehicle. The jury found Lewellen guilty of petit theft.

On June 1, 1995, the trial court adjudicated Lewellen guilty of petit theft and sentenced him to six months in jail, followed by six months of probation. Although the written judgment does not state the degree of the conviction, it is clear from the sentence imposed and our review of the relevant transcripts that the trial court considered Lewellen's prior convictions for petit theft and imposed a first degree misdemeanor sentence. See § 775.082(4)(a), Fla.Stat. (1993). The state concedes that the information did not refer to any prior theft convictions as required to elevate the petit theft conviction to a first degree misdemeanor. See § 812.014(3)(b). The state also concedes that this omission requires reversal. Where there is a possibility that a conviction for a lesser included petit theft offense may result in a first degree misdemeanor adjudication and sentencing, the state must put the defendant on notice in the charging document. See Young v. State, 641 So.2d 401 (Fla.1994); Jenkins v. State, 617 So.2d 836 (Fla. 4th DCA 1993). Accordingly, we hold it was fundamental error to classify Lewellen's petit theft conviction as a first degree misdemeanor.

Although our reversal renders Lewellen's challenge to court costs moot, we address this issue in order to provide guidance to the trial court on remand. Lewellen contends that the trial court erred by imposing a $200 court cost pursuant to section 27.3455, Florida Statutes (1993), because it was not orally announced at sentencing and because it exceeds the amount that may be assessed for a misdemeanor conviction. The trial court is not obligated to announce orally the dollar amount of statutory costs that are mandatory, such as those prescribed by section 27.3455(1), because publication of these costs in the Florida Statutes provides every defendant with adequate notice. See Reyes v. State, 655 So.2d 111, 116-117 (Fla. 2d DCA 1995) (en banc). However, as the state concedes, the mandatory court cost that should be imposed for a misdemeanor is $50.

Lewellen raises two other challenges to his petit theft conviction which have no merit but which warrant discussion. Relying on Valladares v. State, 658 So.2d 626 (Fla. 5th DCA 1995), and O'Brian v. State, 649 So.2d 336 (Fla. 1st DCA 1995), Lewellen argues that his conviction must be vacated because he was convicted of petit theft of a motor vehicle which he claims is a non-existent crime. The cases cited by Lewellen hold that a conviction for a non-existent crime cannot stand. However, this case is distinguishable. In Valladares, 658 So.2d 626, the defendant was convicted of the non-existent crime of attempted felony murder. In O'Brian, 649 So.2d 336, the defendant was convicted of the nonexistent crime of attempted manslaughter by culpable negligence. Here, the jury found Lewellen guilty of petit theft, which is a crime. See § 812.014(3). Thus, Lewellen's contention that he was convicted of a non-existent crime is wrong. However, a potential problem does exist in this case because, as Lewellen correctly asserts on appeal, petit theft is not a lesser included offense to the charge of grand theft of a motor vehicle.

Section 812.014(3)(a) defines petit theft as "[t]heft of any property not specified in subsection (2)." Theft of a motor vehicle is specified in subsection (2) and classified as grand theft of the third degree, a third degree felony. Thus, petit theft is not a proper lesser included offense of grand theft of a motor vehicle. See Johnson v. State, 380 So.2d 1024, 1026 (Fla.1979). A similar situation is addressed in Roberts v. State, 461 So.2d 212 (Fla. 1st DCA 1984). Roberts was charged with second...