TONY LAMAR COFFIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tony Lamar Coffie was convicted of felony petit theft and resisting a merchant. The Florida appellate court affirmed the petit theft conviction but reversed the felony reclassification and the resisting a merchant conviction based on intervening supreme court decisions establishing that prior grand theft convictions cannot support reclassification under the petit theft statute, and that a conviction on the underlying theft is a prerequisite to charging resisting a merchant.
The court reversed the felony petit theft conviction, holding that section 812.014(2)(c) permits reclassification based on prior petit theft convictions but not prior grand theft convictions. The court reversed the resisting a merchant conviction, holding that a conviction on the underlying theft is a material element of that offense and must be established before conviction. The court struck the imposition of court costs and attorney's fees without prejudice to the state seeking them again on remand.
[1] A prior conviction for grand theft cannot serve as a predicate for reclassifying a petit theft charge to felony petit theft under section 812.014(2)(c), Florida Statutes…
[2] A conviction for resisting a merchant under section 812.015(6), Florida Statutes (1985), requires a prior finding of guilt on the underlying theft offense.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“section 812.014(2)(c) permits reclassification based upon two prior petit theft convictions, but not upon two prior grand theft convictions”
Establishes the controlling legal standard for reclassifying petit theft to felony petit theft based on prior convictions.
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Join FLexlaw to unlock all legal intelligenceCoffie was charged with felony petit theft for stealing a package of underwear and with resisting a merchant. A jury found him guilty of both offenses…
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SCHOONOVER, Acting Chief Judge.
The appellant, Tony Lamar Coffie, challenges the judgments and sentences imposed upon him after he was adjudicated guilty of felony petit theft and resisting a merchant. We affirm the appellant’s conviction for petit theft, but reverse and remand in all other respects.
The appellant was charged with felony petit theft in violation of section 812.014, Florida Statutes (1985), and with resisting a merchant in violation of section 812.-015(6), Florida Statutes (1985). A jury found the appellant guilty of petit theft by stealing a package of "fruit of the loom” underwear and guilty of resisting a merchant. The state then presented evidence of two prior grand theft convictions and asked the court to reclassify the petit theft to felony petit theft pursuant to section 812.014(2)(c). The court granted the state’s request and reclassified the appellant’s petit theft conviction to felony petit theft. The appellant was then adjudicated guilty of both offenses and sentenced to serve five years imprisonment on the felony petit theft charge and one year on the resisting a merchant charge. The sentences were ordered to be served concurrently. The court also assessed attorney’s fees, court costs, and fines. This timely appeal followed.
The appellant raises three issues on appeal. We find merit in all of them.
First, the appellant contends that the trial court erred by reclassifying his petit theft conviction to a felony. At the time the appellant was sentenced, the court was bound by and followed this court’s decision in Hall v. State, 469 So. 2d 224 (Fla. 2d DCA 1985). In Hall, we held that two prior grand theft convictions constituted a proper predicate for the reclassification of the charge. However, after the appellant was sentenced the supreme court disapproved our Hall decision. In State v. Jackson, 526 So. 2d 58 (Fla.1988), the supreme court held that section 812.014(2)(c) permits reclassification based upon two prior petit theft convictions, but not upon two prior grand theft convictions. We, therefore, reverse the appellant’s conviction of felony petit theft, and remand for the entry of judgment and sentence on the petit theft charge.
Next, the appellant contends that he was improperly convicted of the offense of resisting a merchant because he could not be tried on that charge until there was a conviction of the underlying theft. Although there was sufficient evidence to find that the appellant was guilty of the crime of resisting a merchant, the supreme court’s decision in K.C. v. State, 524 So. 2d 658 (Fla.1988) (also rendered after the appellant was sentenced in this case), requires us to reverse on this charge as well. In K.C., the supreme court held that section 812.015(6) requires a finding of guilt on the underlying theft before the state can bring the charge of resisting a merchant. The court held that an information must allege each of the crime’s essential elements to be valid and the subsequent finding of guilt as to the underlying theft is a material element of the offense of resisting a merchant. We must, therefore, in accordance with K. C., reverse the appellant’s conviction of resisting a merchant and remand for proceedings consistent herewith.
Last, the appellant also correctly contends that the court erred by imposing court costs and attorney’s fees without proper notice and opportunity to be heard. Hart v. State, 516 So. 2d 58 (Fla. 2d DCA 1987); Jenkins v. State, 444 So. 2d 947 (Fla.1984). We, accordingly, strike the imposition of these items without prejudice to the state seeking their imposition again upon remand.
Affirmed in part, reversed in part, and remanded.
LEHAN and PATTERSON, JJ., concur.
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Citator
Cited By
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Jasper D. Grimes v. State, 724 So. 2d 614 (Fla. 5th DCA 1998)…nviction. A former subsection of 812.014, subsection 812.014(2)(d), Florida Statutes' (1991), limited predicate convictions to petit theft. See Jackson v. State, 515 So. 2d 394 (Fla. 1st DCA 1987) approved, 526 So. 2d 58 (Fla.1988); Coffie v. State, 562 So. 2d 423 (Fla. 2d DCA 1990). The statute was revised m 1992 to provide: A person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree, punishable as provided in s. 775.082 or s. 77…
Authorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- State v. Jackson, 526 So. 2d 58 (Fla. 1988)
- Jaquelyn Frances Hart v. State, 516 So. 2d 58 (Fla. 2d DCA 1987)
- Hall v. State, 469 So. 2d 224 (Fla. 2d DCA 1985)
- K.C. v. State, 524 So. 2d 658 (Fla. 1988)