JAMES HOPE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed habitual felony offender sentence for felony petit theft because the statute does not authorize such sentencing and the imposed sentence exceeded the statutory maximum.
An habitual felony offender sentence may not be imposed for the crime of felony petit theft.
[1] Felony petit theft under Florida Statutes section 812.014 does not authorize sentencing as an habitual felony offender under section 775.084.
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Join FLexlaw to unlock all legal intelligenceHope pled guilty to burglary of a structure and felony petit theft. The trial judge sentenced him to seven years as an habitual felony offender on eac…
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STEVENSON, J.
Appellant, James Hope, pled guilty to burglary of a structure (count I) and felony petit theft (count II). The trial judge sentenced Hope to seven years as an habitual felony offender for count I and to seven years as an habitual felony offender for count II. Appellant argues, and the State concedes, that an habitual felony offender sentence may not be imposed for the crime of felony petit theft. A person who commits petit theft, and who has previously been convicted of two or more theft offenses, commits felony theft, a third degree felony. See § 812.014, Fla. Stat. (1997). The felony petit theft statute does not provide for sentencing as an habitual offender under Florida Statutes section 775.084. See § 812.014, Fla. Stat.; Burke v. State, 734 So. 2d 1175 (Fla. 4th DCA 1999); Ridley v. State, 702 So. 2d 559 (Fla. 2d DCA 1997); Berch v. State, 691 So. 2d 1148 (Fla. 3d DCA 1997). Moreover, since the seven-year sentence imposed by the trial court exceeds the five-year statutory maximum for this third degree felony, the error is fundamental and can be raised and corrected on direct appeal despite the fact that Hope did not preserve the issue; a point the State, again, concedes. See e.g., Henderson v. State, 720 So. 2d 1121 (Fla. 4th DCA 1998).
Reversed and remanded for re-sentencing as to count II.
WARNER, C.J., and GROSS, J., concur.
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Citator
Cited By
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Turner v. State, 91 So. 3d 219 (Fla. 3d DCA 2012)…rdingly, the third degree felony littering conviction, occurring within five years of the date of the current manslaughter offense, was properly used as a qualifying prior offense for purposes of habitual offender sentencing.2 Id. Cf. Hope v. State, 751 So. 2d 657 (Fla. 4th DCA 1999) (finding that enhanced sentencing was improperly applied to an offense that did not statutorily provide for habitual offender sentencing under section 775.084); Berch v. State, 691 So. 2d 1148 (Fla. 3d DCA 1997) (same). Affirmed…
Authorities Cited
- Ridley v. State, 702 So. 2d 559 (Fla. 2d DCA 1997)
- Henderson v. State, 720 So. 2d 1121 (Fla. 4th DCA 1998)
- Berch v. State, 691 So. 2d 1148 (Fla. 3d DCA 1997)
- Burke v. State, 734 So. 2d 1175 (Fla. 4th DCA 1999)