THOMAS VINCENT MICHUTKA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michutka appeals the summary denial of his post-conviction relief motion challenging his felony convictions for defrauding an innkeeper and grand theft. The court reversed, holding that the information charging him failed to allege the required $100+ value element, meaning he could only be convicted of a misdemeanor despite proof at trial of greater value.
A defendant cannot be convicted of or sentenced for a felony when charged only with a misdemeanor, regardless of proof adduced at trial. Because Michutka's information failed to allege the $100+ value element required for felony classification, it charged only a misdemeanor, and he could be convicted only of that misdemeanor. Summary denial of the post-conviction motion was improper and the claim of ineffective assistance of counsel was improperly denied.
[1] An information that fails to allege the value of goods obtained by fraud charges only a misdemeanor, even if proof at trial shows the value exceeds the felony threshold.
[2] A defendant cannot be convicted of or sentenced for a felony if the charging information only alleged a misdemeanor, regardless of the proof adduced at trial.
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Join FLexlaw to unlock all legal intelligence“An information which fails to allege the value of the goods obtained by fraud pursuant to § 509.151 charges a misdemeanor.”
Establishes the foundational legal principle that determines the maximum chargeable offense based on the information's allegations.
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Join FLexlaw to unlock all legal intelligenceMichutka was convicted of defrauding an innkeeper and grand theft by credit card, both charged as third-degree felonies. The information charging the …
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THOMPSON, Judge.
Michutka appeals the denial, without a hearing, of his Fla.R.Crim.P. 3.850 motion for post conviction relief. We reverse.
Michutka was convicted of one count of defrauding an innkeeper of more than $100 and one count of grand theft by use of a credit card, both third degree felonies. §§ 509.151(1) and 812.014, Fla.Stat. (1983).
Section 509.151(1) provides that if the value of the food or lodging obtained by fraud is worth $100 or more the offense is a third degree felony. If the value is less than $100, the offense is a second degree misdemeanor. In his 3.850 motion Michutka asserts as his first two grounds for relief that the information charging him with defrauding an innkeeper failed to state that the value of the food or lodging was $100 or more.
Therefore, he argues, both the conviction and sentence for a third degree felony are illegal since the information charged only a second degree misdemean-or. Michutka also asserts as grounds for relief that he received ineffective assistance of counsel by virtue of his lawyer’s failure to discover and attack the validity of the information and in other respects. The court summarily denied Michutka’s motion, stating that all of the grounds were or should have been raised on direct appeal. This denial was incorrect for several reasons.
An information which fails to allege the value of the goods obtained by fraud pursuant to § 509.151 charges a misdemeanor. Hinson v. State, 436 So. 2d 437 (Fla. 4th DCA 1983).
If the information charges a misdemeanor and the proof adduced at trial is that the value does in fact exceed $100 the defendant nevertheless may only be convicted of a misdemeanor. Tillman v. State, 329 So. 2d 370 (Fla. 2d DCA 1976); Haley v. State, 315 So. 2d 525 (Fla. 2d DCA 1975).
In the instant case Michutka was charged only with a misdemeanor, although the proof at trial was that the value of the food and lodging in question was over $400. Because Michut-ka was not charged with a felony under § 509.151 he cannot be convicted of or sentenced for a felony regardless of the proof adduced at trial. It is fundamental error to convict a defendant of a crime with which he has not been charged. Tillman v. State.
Therefore Michutka’s first two grounds state valid claims for relief, and summary denial was improper. Michutka’s final ground for relief alleging ineffective assistance of counsel was also improperly denied. Although a claim of ineffective assistance of counsel can be raised on direct appeal, generally it is a collateral matter which should be raised by a motion for post-conviction relief. Stewart v. State, 420 So. 2d 862 (Fla.), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366, reh. denied, 462 U.S. 1124, 103 S.Ct. 3099, 77 L.Ed.2d 1357 (1982).
We reverse the denial of relief and remand with instructions that the circuit court correct the judgment and sentence to reflect a second degree misdemeanor conviction for the charge of defrauding an innkeeper. Michutka’s claim of ineffective assistance of counsel was improperly denied and upon remand the court should conduct further proceedings in accordance with the provisions of Fla.R.Crim.P. 3.850.
REVERSED and REMANDED.
BOOTH, C.J., and ERVIN, J., concur.
THOMPSON, Judge.
In its motion for rehearing the state, relying on State v. King, 426 So. 2d 12 (Fla.1983), argues that the legality of Michutka’s conviction and sentence for grand theft by use of a credit card was not properly preserved for review because the defective information was never challenged below, and because the conviction and sentence was affirmed by this court upon direct appeal in Michutka v. State, 478 So. 2d 868 (Fla. 1st DCA 1985). As we stated in our opinion, Michutka’s conviction and sentence for an offense with which he was never charged is fundamental error. Haley v. State, 315 So. 2d 525, 527 (Fla. 2d DCA 1975). Accordingly, the legality of the conviction can be properly considered pursuant to Michutka’s Fla.R.Crim.P. 3.850 collateral attack on his judgment and sentence. Clark v. State, 363 So. 2d 331 (Fla. 1978); Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983); Flowers v. State, 351 So. 2d 387 (Fla. 1st DCA 1977).
The motion for rehearing is denied.
BOOTH, C.J., and ERVIN, J., concur.
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In the Interest of J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987)…dging is obtained by fraud, the crime is a second degree misdemeanor with a penalty of up to 60 days in jail. If the amount exceeds $100, it is a third degree felony and the penalty increases to 5 years imprisonment. § 509.151. In Michutka v. State, 506 So. 2d 1 (Fla. 1st DCA 1986), this court granted post-conviction relief upon a finding that an information alleging defrauding an innkeeper failed to state the value of the food and lodging was $100 or more. The information thus was insufficient to sustain t…
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Sammie Lee Harris v. State, 580 So. 2d 243 (Fla. 1st DCA 1991)…g the ineffectiveness claim are apparent on the face of the record. Blanco v. Wainwright, 507 So. 2d 1377 (Fla.1987); Stewart v. State, 420 So. 2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); Michutka v. State, 506 So. 2d 1 (Fla. 1st DCA 1986); Fasano v. State, 548 So. 2d 1191 (Fla. 4th DCA 1989); Gordon v. State, 469 So. 2d 795 (Fla. 4th DCA), rev. denied, 480 So. 2d 1296 (Fla.1985). Furthermore, as the court pointed out in Stewart v. State, supra, appellate counsel c…
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Lafferty v. State, 114 So. 3d 1115 (Fla. 2d DCA 2013)…tate, 329 So. 2d 370, 371 (Fla. 2d DCA 1976) (stating that when the value of property was not alleged in the information, the defendant could only be convicted of petit larceny even though the proof at trial showed grand larceny); Michutka v. State, 506 So. 2d 1, 2 (Fla. 1st DCA 1986) (stating that it is fundamental error to convict a defendant of a crime with which he was not charged). Thus, Lafferty has been convicted of petit theft in the second degree, an offense that contains no elements that are not…
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 (12 total)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- State v. King, 426 So. 2d 12 (Fla. 1982)
- Stewart v. Florida, 460 U.S. 1103 (U.S. 1983)
- Knoblock v. Paree W. Knoblock, 351 So. 2d 387 (Fla. 1st DCA 1977)
- Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)
- Haley v. State, 315 So. 2d 525 (Fla. 2d DCA 1975)
- Magwood v. Alabama, 462 U.S. 1124 (U.S. 1983)
- Cele v. Kinney, 462 U.S. 1124 (U.S. 1983)
- Tillman v. State, 329 So. 2d 370 (Fla. 2d DCA 1976)