STATE OF FLORIDA, APPELLANT,
v.
MICHAEL CROCKER, APPELLEE
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The court held that the trial court erred in denying the state's motion to find the defendant guilty of felony petit theft based on prior convictions, as the statute allows for such a determination post-conviction.
[1] A prior conviction for petit theft can elevate a subsequent petit theft conviction to a felony of the third degree.
[2] Evidence of prior theft convictions should not be presented to the jury when determining guilt for a current petit theft charge, to avoid prejudice.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of petit theft and resisting an officer. The state sought to have the defendant sentenced for felony petit theft based on …
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SCHOONOVER, Judge.
The appellee, Michael Crocker, was found guilty of petit theft and resisting an officer without force. The state has appealed the judgment and sentence entered on the petit theft conviction. We find that the trial court erred in denying the state’s motion to find Crocker, who allegedly had two prior theft convictions, guilty of a felony of the third degree pursuant to section 812.014(2)(c), Florida Statutes (1985), and to sentence him accordingly. We, therefore, reverse.
Crocker was charged by information with resisting an officer without violence in violation of section 843.02, Florida Statutes (1985), and with grand theft in violation of section 812.014, Florida Statutes (1985).
The jury found Crocker guilty of resisting an officer without violence and petit theft. Prior to sentencing, the state moved to have Crocker sentenced for felony petit theft pursuant to section 812.014(2)(c) and sought to produce evidence that Crocker had previously been adjudicated guilty of both grand and petit theft.
The trial court denied the state’s motion, adjudicated Crocker guilty in accordance with the jury verdicts, and imposed a nine month sentence on the resisting an officer without violence conviction and a consecutive sixty day sentence on the petit theft conviction. This timely appeal of the judgment and sentence entered on the petit theft conviction followed.
Crocker contends that felony petit theft is a distinct substantive offense and that prior theft convictions must be specifically alleged on the charging document and proved.
We agree that felony petit theft is a substantive offense. See State v. Harris, 356 So. 2d 315 (Fla.1978).
We also agree that when felony petit theft is the only felony with which an accused is charged, the charging document must make clear that felony petit theft is being charged in order to invoke the jurisdiction of the circuit court. State v. Phillips, 463 So. 2d 1136 (Fla.1985).
We do not agree, however, that prior thefts must be alleged in the charging document and proved in all instances before an accused may be found guilty of felony petit theft. Rather, we agree with our sister court’s statement in Peek v. Wainwright, 393 So. 2d 1175 (Fla. 3d DCA 1981), that if such a procedure were required, the state would have to charge the crime of felony petit theft, in the alternative, in every case that a jury could find the defendant guilty of petit theft as a lesser included offense of the crime actually charged.
Section 812.014(2)(c) provides in part that “[u]pon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree....” Although felony petit theft is a substantive offense and it is necessary to prove prior convictions as an element of that offense, the prior convictions should not be brought to the jury’s attention because of the possible prejudice to the accused. Harris. Upon conviction of the third petit theft, the court should determine, in a separate proceeding, the historical fact of prior convictions and questions regarding identity in accord with general principles of law. In doing so, the court should follow a procedure similar to that employed under the habitual offender statute, section 775.084, Florida Statutes (1985). Harris.
Although Crocker was not charged with felony petit theft in this case, upon his conviction of petit theft as a lesser included offense of grand theft, the state should have been permitted to establish that he was guilty of felony petit theft pursuant to section 812.014(2)(c). See Peek. The court erred by not applying the provisions of this section in determining the appropriate degree of Crocker’s crime and the correspondingly appropriate sentence.
We find no reason why we should protect an accused from possible prejudice by keeping evidence of his prior convictions from the jury and then hold that he cannot be convicted of the crime because he is so protected. As stated in Harris, the legislature has the right to create the substantive offense of felony petit theft, but the courts have the right to dictate the procedure to be employed in implementing it.
In this case, after Crocker was found guilty of petit theft and prior to sentencing, the state announced its intention to have him sentenced in accordance with the provisions of section 812.014(2)(c). In so doing, the state tried, as soon as possible under the circumstances, to follow the requirements of Harris and Peek, and the trial court erred in not allowing it to do so.
We reverse and remand for proceedings consistent herewith.
DANAHY, C.J., and LEHAN, J., concur.
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Pritchard v. State, 528 So. 2d 1272 (Fla. 1st DCA 1988)…. He contends the state must offer judgments of convictions as to these past convictions. A more appropriate analogy is to the felony petit theft statute5 which contains language quite similar to that in the felony DUI statute. In State v. Crocker, 519 So. 2d 32 (Fla. 2d DCA 1987), the court held that the prior petit convictions need not be alleged in the charging document because of possible prejudice to the accused in the event the prior convictions were brought to the jury’s attention. Upon a conviction…
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Young v. State, 641 So. 2d 401 (Fla. 1994)…HARDING, Justice. We have for review Young v. State, 630 So. 2d 1113 (Fla. 2d DCA 1993), which relied upon State v. Crocker, 519 So. 2d 32 (Fla. 2d DCA 1987), and noted conflict with Clay v. State, 595 So. 2d 1052 (Fla. 4th DCA 1992). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.1 Jay Robinson Young was found guilty of the lesser included off…1 / 2
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Flarity v. State, 527 So. 2d 295 (Fla. 5th DCA 1988)…tions are proved to the judge, the accused can be lawfully convicted and sentenced for felony petit theft although the charging document does not allege the prior convictions. Following Peek, the Second District Court of Appeal in State v. Crocker, 519 So. 2d 32 (Fla. 2d DCA 1987) also held that prior petit theft convictions do not have to be alleged in the charging document and proved “in all instances” before an accused may be found guilty of felony petit theft. Crocker understood that the reason for the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Harris, 356 So. 2d 315 (Fla. 1978)
- State v. Phillips, 463 So. 2d 1136 (Fla. 1985)
- Peek v. Louie L. Wainwright, 393 So. 2d 1175 (Fla. 3d DCA 1981)