JOHN BERCH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1997-04-16
No. 95-3660
Before NESBITT, JORGENSON and SHEVTN, JJ.
691 So. 2d 1148 Florida District Court of Appeal, Third District (1997) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

John Berch appeals his conviction for felony petit theft and habitual offender sentence. The Florida appellate court affirmed the theft conviction but reversed the habitual offender sentence, holding that a 1992 statutory amendment removing reference to the habitual offender statute from the petit theft provision precluded such sentencing.


Holding

The court affirmed the felony petit theft conviction but reversed the habitual offender sentence. The 1992 amendment to the petit theft statute deliberately removed the reference to section 775.084 (the habitual offender statute), and the intentional omission precludes habitual offender sentencing for felony petit theft.


Headnotes

[1] A trial court may amend an information to include a charge of felony petit theft after the jury is sworn if the defendant and their attorney are aware of the State's inte…

[2] The omission of a reference to the habitual offender statute in an amendment to the felony petit theft statute is presumed to be intentional.

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Key Quotes

“The changes in the committee substitute provide that the person who is prosecuted on an enhanced penalty for petit theft is not subject to habitual offender penalties.”

Committee Notes explaining the legislative intent of the 1992 amendment to exclude habitual offender penalties from felony petit theft sentencing

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Facts & Procedural History

Berch was charged with robbery arising from a 1995 shoplifting incident. The State sought enhanced penalty under the habitual offender statute. After …

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Opinion of the Court
JORGENSON, Judge.

JORGENSON, Judge.

Defendant appeals from a judgment of conviction for felony petit theft and from a habitual offender sentence. We affirm the conviction on the felony petit theft charge, but reverse the trial court’s imposition of a habitual felony offender sentence and remand for resentencing.

Defendant was charged with robbery arising from a 1995 shoplifting incident. The State filed a notice of seeking an enhanced penalty under the habitual offender statute. After the jury was sworn, the State moved to amend the information to include written notice that if defendant was found guilty of the lesser included offense of petit theft, defendant was also charged with felony petit theft.

The jury found defendant guilty of petit theft; the trial court adjudicated defendant guilty of felony petit theft and sentenced him to five years in state prison as a habitual felony offender.

We find no error in the State’s amendment of the information to include the charge of felony petit theft; the record indicates that defendant and his attorney knew that the State intended to seek an enhanced penalty for felony petit theft. Before trial, the court and counsel, in defendant’s presence, discussed defendant’s prior theft convictions, and the court had referred to those prior convictions as precluding it from approving a proposed plea agreement of twenty months imprisonment as a habitual offender.

However, the trial court erred in sentencing defendant as a habitual offender. In 1992, the Florida legislature amended the felony petit theft statute to provide that 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. 775.083.” § 812.014(2)(d), Fla. Stat. (1993) (emphasis added).

Under the pre-1992 statute, a person who was convicted of petit theft “[u]pon a third or subsequent conviction for petit theft” was “guilty of a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084.” § 812.014(2)(d) (1991) (emphasis added).

The 1992 amendment deleted any reference to section 775.084, the habitual offender statute. The Committee Notes on the 1992 amendment provide that “[T]he changes in the committee substitute provide the person who is prosecuted on an enhanced penalty for petit theft is not subject to habitual offender penalties.” Staff of Fla. Comm. On Crim. Just., HB 421 (1992) Staff Analysis 6 (emphasis added).

Where the legislature amended the petit theft statute and excluded a prior reference to the habitual offender section, the trial court erred in interpreting the statute to allow a habitual offender sentence.

The omission of a word in the amendment of a statute will be assumed to have been intentional. And, where it is apparent that substantial portions of a statute have been omitted by process of amendment, the courts have no express or implied authority to supply omissions that are material and substantive, and not merely clerical and unconsequential [sic].

Gunite Works, Inc. v. Lovett, 392 So. 2d 910, 911 (Fla. 1st DCA 1980), (quoting Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362, 364-65 (Fla.1978)). Cf. Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla.1995) (where legislature uses term in one section of statute but omits same term from other section, court “will not imply it where it has been excluded”). Accordingly, we reverse that portion of defendant’s sentence that classified him.as a habitual offender. Affirmed in part; reversed in part; remanded with directions to resentence defendant.1

. On remand, the trial court is free to resentence • defendant to any lawful sentence. If, however, it chooses to depart from a guidelines sentence, it must give contemporaneous written reasons for its departure.


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Citator

Cited By

  • Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
    …he statutes. An example is section 812.014, Florida Statutes, which was amended in 1992 to indicate that habitual felony offender sentencing for felony petit theft is precluded. See Ridley v. State, 702 So. 2d 559 (Fla. 2d DCA 1997); Berch v. State, 691 So. 2d 1148 (Fla. 3d DCA 1997). The trial court in the present case therefore erred in imposing a habitual felony offender sentence for the appellant’s 1996 theft. The more difficult question, however, is whether this unpreserved error is remediable in this dir…
  • Ridley v. State, 702 So. 2d 559 (Fla. 2d DCA 1997)
    …t that the Committee Notes on the 1992 [*560] amendment provide that “the changes in the committee substitute provide the person who is prosecuted on an enhanced penalty for petit theft is not subject to habitual offender penalties.” Berch v. State, 691 So. 2d 1148, 1149 (Fla. 3d DCA 1997), citing the Staff of Fla. Comm. On Crim. Just., HB 421 (1992) Staff Analysis 6 (emphasis added in Berch.) The trial court’s treatment of Ridley as a habitual offender when it placed him on community control, before this cou…
  • Wilson v. State, 752 So. 2d 1227 (Fla. 5th DCA 2000)
    …different meaning. The court concluded that by eliminating the reference to the habitual offender statute when amending section 812.014, the legislature clearly intended to eliminate that sentencing option for felony petit theft. The Berch v. State, 691 So. 2d 1148, 1149 (Fla. 3d DCA 1997) opinion referred to the legislative committee notes to the amendment which explained that a person prosecuted for enhanced petit theft is not subject to habitual offender penalties. Each of the district courts, other than th…

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