State v. Phillips

• Decision Date: 07 February 1985
• Docket Number: No. 64547,64547
• Citation: 10 Fla. L. Weekly 110,463 So.2d 1136
• Parties: 10 Fla. L. Weekly 110 STATE of Florida, Petitioner, v. Irene Yvonne PHILLIPS, Respondent.
• Court: Florida Supreme Court

Page 1136

463 So.2d 1136

10 Fla. L. Weekly 110

STATE of Florida, Petitioner, v. Irene Yvonne PHILLIPS, Respondent.

No. 64547.

Supreme Court of Florida.

Feb. 7, 1985.

Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for petitioner.

Gwendolyn Spivey and Michael J. Minerva, Asst. Public Defenders, Second Judicial Circuit, Tallahassee, for respondent.

EHRLICH, Justice.

This cause is before the Court for review of the decision of the First District Court of Appeal in Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983), pursuant to a question certified as being of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Phillips was charged by information with the theft of less than one hundred dollars from Winn Dixie Stores, Inc. The heading of the information read "FELONY PETIT THEFT." At Phillip's arraignment, the state filed a notice of intent to rely on two prior petit theft convictions in order to enhance the crime pursuant to section 812.014(2)(c), Florida Statutes (1981), but the prior convictions were not alleged in the information itself.

Phillips was tried, convicted and sentenced in circuit court pursuant to the information filed. No objection to the adequacy of the information or to the jurisdiction of the circuit court was ever raised before the circuit court.

Phillips appealed her conviction to the district court, raising two issues on the merits. Subsequently, she sought leave to file a supplemental brief challenging the jurisdiction of the circuit court. The district court ultimately accepted the supplemental brief and agreed that the information was fatally defective for failure to allege jurisdiction of the circuit court. On motion for rehearing the district court certified as a question of great public importance "whether, absent objection or motion to dismiss in the circuit court, the defect found in the charging instrument should be noticed on appeal as jurisdictional."

Pursuant to the provisions of sections 5 and 6 of article V, Florida Constitution, the legislature has vested the circuit courts with original jurisdiction over "all felonies and ... all misdemeanors arising out of the same circumstances as a felony which is also charged." § 26.012(2)(d), Fla.Stat. (1981). County courts have original jurisdiction over "all misdemeanor cases not cognizable by the circuit courts." § 34.01, Fla.Stat. (1981).

Section 812.014, Florida Statutes (1981), defines theft of property valued at less than one hundred dollars as:

petit theft and a misdemeanor of the second degree, .... Upon a second conviction for petit theft, the offender shall be guilty of a misdemeanor of the first degree, .... Upon a third or subsequent conviction for petit theft, the offender, shall be guilty of a felony of the third degree, ....

(Emphasis supplied.)

The information filed against Phillips, under the heading "Felony Petit Theft" charged her with the theft of less than one hundred dollars "contrary to the provisions of Section 812.014(2)(c), Florida Statutes."

The issue before this Court is not one of notice. Phillips concedes that she had proper and sufficient notice of the charges against her and of those prior convictions on which the state based the felony petit theft charge. Neither does Phillips challenge the propriety of the circuit court's jurisdiction over felony petit theft cases. The narrow issue before us is whether the information filed in this case sufficiently alleged commission of a felony and thus properly invoked the jurisdiction of the circuit court.

The facts alleged in the information, if proved, would support a conviction of misdemeanor theft. Phillips contends that, in order to allege felony petit theft, the state was required to allege the two prior theft convictions as essential elements of the crime charged.

The state argues that the heading, Felony Petit Theft, coupled with the reference to the statute defining that crime, fulfilled all the constitutional requirements of a charging document charging the felony. If the felony is adequately charged in the information, the jurisdiction of the circuit court is properly invoked. We agree.

Florida Rule of Criminal Procedure 3.140(b) states that the "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." Subsection (d) of Rule 3.140 further provides "each count shall recite the official or customary citation of the statute ... which the defendant is alleged to have violated."

We hold that, on the facts of this case, the labeling of the charge as Felony Petit Theft coupled with citation to the statute which defines that substantive crime and the recitation of the facts which would support conviction under the statute is a sufficiently "definite statement of the essential facts constituting the offense charged." Thus it is adequate notice of the facts absent a timely objection or motion to dismiss.

In State v. Harris, 356 So.2d 315 (Fla.1978), this Court addressed the prejudicial effect of requiring the jury to hear evidence of defendant's prior convictions to prove the essential elements of the crime charged. While recognizing the legislature's power to...