Pea v. State, 97-3526.
| Decision Date | 02 July 1999 |
| Docket Number | No. 97-3526.,97-3526. |
| Citation | 737 So.2d 1162 |
| Parties | Kenneth PEA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Roberta J. Tylke, Assistant Attorney General, Daytona Beach, for Appellee.
Kenneth Pea was charged by amended information with burglary of a dwelling with a battery (Count I), felony battery (Count II) and possession of drug paraphernalia (Count III).1 Count II was brought under section 784.03(2), Florida Statutes (1997), which allows the enhancement of a battery conviction if the state alleges and proves prior convictions for battery. Count II alleged that Pea previously was convicted of two or more batteries in 1992, 1993 and 1996. The jury convicted Pea of the lesser included offense of battery in Count I and found him guilty as charged in Count II. Count I contained no allegations of prior batteries and simply cited section 784.03. Pea was adjudicated guilty of two counts of felony battery and sentenced as a habitual felony offender to two concurrent five-year prison terms. Although Pea asserts four issues on appeal, we find only one worthy of discussion: that the court erred when it enhanced the battery conviction in Count I to felony battery. We reverse his conviction in Count I and remand for sentencing as a misdemeanor.
Pea argues that his conviction for Count I cannot be enhanced to a felony because the state did not allege that he had prior battery convictions as it did in Count II. He argues that he was given insufficient notice of the enhancement and should have been convicted and sentenced for a misdemeanor battery because the allegations in Count II cannot be used to enhance his conviction and sentence for Count I. The state argues that Pea was on notice of the possible enhancement because his prior convictions were alleged in Count II of the information. Since Pea cannot show that his trial strategy would have changed if the prior convictions were also alleged in Count I, the state argues, the sentencing by the trial court should be affirmed.
In State v. Rodriguez, 575 So.2d 1262 (Fla.1991), the defendant was charged with third degree felony DUI pursuant to section 316.193(2)(b), Florida Statutes. Though the information cited the specific statutory provision, it did not allege that the defendant had three or more prior DUI convictions as required by the statute. Citing State v. Harris, 356 So.2d 315 (Fla.1978), which held that the felony petit larceny statute created a substantive offense and was not simply a penalty enhancing statute, and Florida Rules of Criminal Procedure 3.140(b) and 3.140(d)(1), the supreme court held the state was required to allege the requisite prior DUI convictions in the information. Rodriguez, 575 So.2d at 1264-5. The court stated "the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI." Id. at 1265.
In Young v. State, 641 So.2d 401 (Fla. 1994), the supreme court held that a defendant could not be sentenced for felony petit theft where he was found guilty of the lesser included offense of petit theft and the information failed to allege the prior convictions necessary to elevate the offense to a felony. After the defendant's trial, the state had filed a notice of intention to have the defendant sentenced for felony petit theft under section 812.014(2)(d), Florida Statutes. However, relying on Rodriguez, the supreme court held the state was required to allege all the elements of felony petit theft in the charging document. Young, 641 So.2d at 403. Of particular importance to Pea's case, the supreme court stated that "even when there is a possibility that a conviction for a lesser included offense of petit theft would result in a felony petit theft conviction... the State must put the defendant on notice in the charging document." Id. In a footnote, the court instructed:
The information should include language to the effect that in the event the defendant is found guilty of the lesser included offense of petit theft, the defendant is also charged with felony petit theft under section 812.014(2)(d) by reason of the previous convictions of two or more thefts as thereafter described.
Id. n. 4. See also Lewellen v. State, 682 So.2d 186 (Fla. 2d DCA 1996)
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Jefferies v. State
...appropriately. Thus, the State could have covered all bases because each count of an information stands on its own. Pea v. State, 737 So.2d 1162, 1163 (Fla. 5th DCA 1999). The language of the charging document in Mr. Jefferies' case was deficient in supporting the intentional crime of felon......
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Cox v. State, 5D07-3187.
...to enhance his conviction from the lesser offense of simple battery to the felony battery charge under our precedent in Pea v. State, 737 So.2d 1162 (Fla. 5th DCA 1999). We disagree and In Pea, the defendant was charged with burglary of a dwelling with a battery therein, and the jury return......