ARTHUR SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the burglary conviction but reversed the grand theft conviction and the habitual offender sentence, remanding for resentencing.
[1] A conviction for grand theft may be reversed and remanded for entry of a conviction for petit theft when the state fails to establish the stolen property's market value m…
[2] A trial court errs in denying a motion to reduce a grand theft charge to petit theft when the state fails to prove the value of the stolen property.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of burglary and grand theft, third degree, and sentenced under the Habitual Offender statute. The state confessed error on…
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PER CURIAM.
This is an appeal by the defendant Arthur Smith from (1) a final judgment of conviction for burglary and grand theft, third degree, and (2) a sentence imposed thereon under the Habitual Offender statute, entered below based, on an adverse jury verdict. We affirm in part and reverse in part.
First, we affirm the judgment of conviction for burglary as the defendant makes no contention on appeal that such judgment was entered erroneously; Upon the state’s confession of error, however, we reverse the judgment of conviction for grand theft, third degree, § 812.014(2)(c)(l), Fla.Stat. (1989), and remand the cause to the trial court with directions to enter a judgment of conviction and sentence for the necessarily included offense of petit theft. § 812.014(a)(d), Fla.Stat. (1989).
We accept the state’s confession of error because (a) the state failed to establish that the tires stolen in this case had a market value of $300.00 or more at the time of the theft, and, accordingly, (b) the trial court erred in denying the defendant’s motion at trial to reduce the subject grand-theft charge to petit theft. See, e.g., Vaillant v. State, 490 So. 2d 1326, 1327 (Fla. 3d DCA 1986); Cofield v. State, 474 So. 2d 849 (Fla. 1st DCA 1985).
Second, we reverse the twenty-year sentence imposed on the burglary conviction under the Habitual Offender Act because the trial court failed to make the required statutory findings as defined by Section 775.084(l)(a), Florida Statutes (1989), before sentencing a defendant as a habitual felony offender — findings which must be made by the trial court, supported by a preponderance of the evidence, before a sentence under the Habitual Offender Act may be imposed. Walker v. State, 462 So. 2d 452 (Fla.1985); Power v. State, 568 So. 2d 511 (Fla. 5th DCA 1990); § 775.084(3)(d), Fla.Stat. (1989).
The trial court upon remand, however, may resen-tence the defendant as a habitual felony offender if the requisite statutory findings are made by the court and such findings are supported by a preponderance of the evidence. Walker.
Affirmed in part; reversed in part.
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Simon v. State, 589 So. 2d 381 (Fla. 4th DCA 1991)…ony offender statute, section 775.084(l)(a) 3, 4, Florida Statutes (1989), were not met. A trial court must specifically make the findings required by section 775.084(l)(a) before sentencing a defendant as a habitual felony offender. Smith v. State, 573 So. 2d 194, 194 (Fla. 3d DCA 1991). In summary, we conclude that a jury instruction on the justifiable use of non-deadly force should have been given. Further, the trial court erred in sentencing Simon as a habitual felony offender because not all of the requ…
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Nachon Enters. Inc. v. Alexdex Corp., 615 So. 2d 245 (Fla. 3d DCA 1993)…had not properly responded to the Show Cause Action. Florida’s lien laws, Chapter 713, are an abrogation of the common law, and are to be strictly construed, as well as strictly applied. See Krasne-Gold Coast Joint Venture v. Allied Drywall, Inc., 573 So. 2d 194 (Fla. 4th DCA 1991); Goldberger v. United Plumbing and Heating, Inc., 358 So. 2d 860 (Fla. 4th DCA 1978); Wesley Constr. Co. v. Yarnell, 268 So. 2d 454 (Fla. 4th DCA 1972). Section 713.22(1) provides that a lien is not enforceable after one year fro…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bennie Lee Walker v. State, 462 So. 2d 452 (Fla. 1985)
- Power v. State, 568 So. 2d 511 (Fla. 5th DCA 1990)
- Cofield v. State, 474 So. 2d 849 (Fla. 1st DCA 1985)
- Scott v. State, 490 So. 2d 1326 (Fla. 3d DCA 1986)
- Enumerable Vaillant v. State, 490 So. 2d 1326 (Fla. 3d DCA 1986)