GARY BASIL PUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Pugh appeals his conviction and sentence for felony petit theft. The court affirmed the conviction but reversed and remanded the sentence due to insufficient record evidence regarding prior convictions necessary to impose felony-level penalties under Florida law.
The conviction was affirmed, but the judgment and sentence were reversed and vacated because the record was insufficient to establish the historical fact of prior convictions and to resolve questions regarding identity. The cause was remanded for the trial court to reconsider the sentence consistent with the opinion.
[1] A conviction for felony petit theft requires proof of at least two prior convictions for petit theft.
[2] Prior convictions used to elevate a petit theft charge to a felony must be established at a separate hearing after the jury's verdict.
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Join FLexlaw to unlock all legal intelligence“the fact of the prior convictions is not brought to the jury's attention during trial, but is developed in a subsequent, separate hearing, in order not to destroy the presumption of innocence in favor of the defendant”
Establishes the procedural framework requiring separate hearing for prior convictions in felony petit theft cases
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Join FLexlaw to unlock all legal intelligencePugh was convicted by jury of petit theft. At a sentencing hearing following the verdict, the state attempted to establish prior convictions to enhanc…
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WIGGINTON, Judge.
Pugh appeals from the judgment and conviction of felony petit theft.1 After a careful and thorough review of the record on appeal, we find sufficient basis on which to rest our affirmance of the trial court’s denial of Pugh’s motions for judgment of acquittal and for a new trial. Further, the trial court did not err in admitting into evidence the stolen property; sufficient chain of custody was demonstrated by the state.
Nevertheless, we are concerned with the actual judgment and sentence for felony petit theft. Section 812.014(2)(c), Florida Statutes, under which Pugh was charged and convicted, creates the substantive offense of felony petit theft. It essentially provides for enhanced punishment, by elevating the offense from a second degree misdemeanor to a third degree felony upon the third or subsequent conviction for petit theft. However, the fact of the prior con victions is not brought to the jury’s attention during trial, but is developed in a subsequent, separate hearing, in order not to destroy the presumption of innocence in favor 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 the state’s proffer of prior convictions, contending two of the prior convictions were rendered on the same day and were therefore to be treated as one conviction, Shead v. State, 367 So. 2d 264 (Fla.3d DCA 1979); the proffer did not indicate for what offense the convictions were entered; and an alleged “third” conviction did not carry with it the proper identification. The court, agreeing, set an evidentiary hearing, but thereafter, the record is silent as to any such hearing except that Pugh was ultimately sentenced to five years for felony petit theft.
Because the error in sentencing could cause Pugh to be incarcerated for a greater length of time than the law permits, it is fundamental, and we must consider it although Pugh could otherwise challenge it via a Rule 3.850 motion. Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982); Gonzalez v. State, 392 So. 2d 334 (Fla.3d DCA 1981). The judgment and sentence are therefore reversed and vacated and the cause is remanded with directions that the trial court reconsider both, consistent with this opinion.
MILLS and ERVIN, JJ., concur. . Counsel for Pugh filed its brief in accordance with the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pugh, himself, did not file a brief, although he was given opportunity to do so.
WIGGINTON, Judge.
Having considered appellee’s motion for rehearing, we grant the motion. It was brought to our attention that counsel for the parties stipulated to the existence of other prior convictions for petit theft, aside from those included in the current record on appeal, and to their sufficiency to support felony petit theft sentencing treatment in this case. Accordingly, the judgment and sentence are hereby AFFIRMED.
MILLS and ERVIN, JJ., concur.
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Napoleon Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986)…use,” lies in the fundamental nature of the alleged sentencing error as one which, at least in the context of Aikens and the present case, “could cause [defendant] to be incarcerated for a greater length of time than the law permits.” Pugh v. State, 423 So. 2d 398, 399 (Fla. 1st DCA 1982). Rule 3.850 specifically authorizes second or successive motions if the judge finds that new and different grounds are alleged and that the failure of the movant or his attorney to assert those grounds in a prior motion did…
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Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984)…k of no more fundamental error than the excess caging of a human being without statutory authority. Such an error in sentencing should be visited by an appellate court even if the trial court did not have the opportunity to do so. See Pugh v. State, 423 So. 2d 398, 399 (Fla. 1st DCA), dismissed 426 So. 2d 28 (Fla. 1982), which held: Because the error in sentencing could cause Pugh to be incarcerated for a greater length of time than the law permits, it is fundamental, and we must consider it although Pugh co…
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Bennie Lee Walker v. State, 442 So. 2d 977 (Fla. 1st DCA 1983)…t for good time or gain time and the following two to be stayed while Noble was on probation. ON MOTION FOR REHEARING EN BANC DENIED Walker contends this decision is contrary to Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982), and Pugh v. State, 423 So. 2d 398 (Fla. 1st DCA 1983), and moves for en banc consideration. We deny this motion because this case is not contrary to the cited cases as shown hereafter. ' This Court’s decision in Polk v. State, supra, does not conflict with this case. In Polk, the t…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Harris, 356 So. 2d 315 (Fla. 1978)
- Shead v. State, 367 So. 2d 264 (Fla. 3d DCA 1979)
- Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)
- Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982)
- Harris v. State, 400 So. 2d 1296 (Fla. 1st DCA 1981)