ROBERT HENRY HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a prior conviction for attempted petit larceny cannot be used to enhance a petit theft charge to a felony. However, prior convictions for petit larceny under a former statute can be used.
Harris was convicted of felony petit theft based on two prior convictions, one for petit larceny and one for attempted petit larceny. The trial court …
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PER CURIAM.
Harris appeals his conviction and sentence for felony petit theft. Subsection 812.014(2)(c), Fla.Stat. (1979). We affirm the conviction, but reverse the sentence and remand for resentencing.
As provided in Subsection 812.014(2)(c), Florida Statutes (1979), petit theft is normally a misdemeanor. The statute, however, specifically provides that “[ujpon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and s. 775.-084.” Therefore, in order to be sentenced under the felony provisions of Subsection 812.014(2)(c), the offender must have been convicted twice previously of a petit theft. At sentencing, however, the trial court indicated it considered two previous convictions, one for petit larceny and one for attempted petit larceny, as the basis for the appellant’s enhanced sentence. Since the statute does not permit consideration of the attempted petit larceny conviction, the trial court erred in sentencing Harris.
The appellant also asserts that Subsection 812.014(2)(c) does not permit consideration of convictions for petit larceny under former Section 812.021, Florida Statutes. There is no distinction between these two statutes for the purpose of sentencing under Subsection 812.014(2)(c). We, therefore, reverse the sentence and remand the cause for resentencing.
MILLS, BOOTH and LARRY G. SMITH, JJ., concur.
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Pugh v. State, 423 So. 2d 398 (Fla. 1st DCA 1982)…avor of the defendant. State v. Harris, 356 So. 2d 315, 317 (Fla.1978). Therefore, in order to be sentenced under the felony provisions of the statute, the defendant must have been convicted at least twice previously of petit theft. Harris v. State, 400 So. 2d 1296 (Fla. 1st DCA 1981). In the instant case, the record is insufficient to establish the historical fact of prior convictions and to resolve questions regarding identity. At a separate hearing following the jury’s verdict, defense counsel objected to…
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Manning v. State, 456 So. 2d 1303 (Fla. 1st DCA 1984)…We find no error in the trial court’s finding based on this evidence. See generally State v. Harris, 356 So. 2d 315 (Fla.1978); Jones v. State, 384 So. 2d 956 (Fla. 5th DCA), petition for rev. denied, 392 So. 2d 1375 (Fla.1980); cf Harris v. State, 400 So. 2d 1296 (Fla. 1st DCA 1981); Harris v. State, 352 So. 2d 1264 (Fla. 2d DCA 1977). Therefore, having reviewed this case pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and finding no reversible error, appellant’s judgmen…