McFadden v. State, 94,235.
Decision Date | 10 June 1999 |
Docket Number | No. 94,235.,94,235. |
Citation | 737 So.2d 1073 |
Court | Florida Supreme Court |
Parties | Jimmie Lee McFADDEN, Petitioner, v. STATE of Florida, Respondent. |
Nancy A. Daniels, Public Defender, and Carol Ann Turner, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner
Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, Florida, for Respondent
We have for review a decision passing upon the following question certified to be of great public importance:
WHETHER A PRIOR CONVICTION FOR FELONY PETIT THEFT CAN BE USED AS A QUALIFYING OFFENSE UNDER SECTION 775.084, FLORIDA STATUTES.
McFadden v. State, 23 Fla. L. Weekly D2341, 732 So.2d 335 (Fla. 1st DCA 1998). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
The trial court adjudicated petitioner guilty of attempted robbery with a weapon and sentenced him as a habitual felony offender premised on his having been convicted of felony petit theft within five years of the instant conviction. On appeal, the First District was presented with the issue of "whether the trial court erred in using felony petit theft as a predicate for imposition of the habitual felony offender sentence." McFadden, 23 Fla. L. Weekly at D2341, 732 So.2d 335. The habitualization statute provides:
(1) As used in this act:
§ 775.084, Fla. Stat. (Supp.1996)(emphasis added). The First District held that felony petit theft can be used as a predicate offense to support a habitual sentence and affirmed petitioner's sentence. The court explained that "[i]n accordance with the rule that `penal statutes must be strictly construed according to their letter,' see Perkins v. State, 576 So.2d 1310, 1312 (Fla. 1991), it appears the deletion of habitual offender sentencing from the felony petit theft penalty provision should be interpreted as pertaining only to the offense then before the court for sentencing." McFadden, 23 Fla. L. Weekly at D2341, 732 So.2d 335. We agree.
Petitioner argues that it is inconsistent to use felony petit theft as a predicate offense to support habitualization while a conviction of said offense cannot result in habitualization when it is the substantive offense for which an offender is being sentenced. See Ch. 92-79, § 1, at 742, Laws of Fla. ( ). Our contrary view is that use of felony petit theft as a predicate offense is unrelated to the inability to habitualize a defendant being sentenced pursuant to a felony petit theft conviction.
Since the legislature created only one exclusion as to the felonies that may be used as predicate offenses for habitualization— in the...
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