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Smith v. State10/13/2000
Appeal from the Circuit Court for Orange County, Dorothy J. Russell, Judge.
Defendant went to trial on charges of burglary of a structure, grand theft and possession of drug paraphernalia. He was convicted after a jury trial of the burglary and possession charges, and of petit theft. In the information, the state had noted two or more prior theft convictions, and after trial but before sentencing, the state indicated its intention to seek a felony petit theft adjudication. It was successful and defendant was sentenced to ten years incarceration as an habitual offender on the burglary conviction, five years concurrent on the enhanced petit felony charge, and a concurrent one-year sentence on the paraphernalia charge.
Appellant first contends that the trial court erred in denying his motion for judgment of acquittal on the burglary charge. He asserts that he was an invitee on the premises of the paint and body shop which he says was open to the public (and from which he was accused of stealing two paint sprayers) so that he could not be convicted of burglary of that structure, citing Delgado v. State, 25 Fla. L. Weekly 5631 (Fla. 2000). However, there was testimony from the owner of the premises and employees that the business was a wholesale, not retail business and did no work for the general public; that there were three "Employee Only" signs on the premises and no one other than employees were permitted to enter the paint room where the stolen paint sprayers were kept. In evaluating a motion for judgment of acquittal, all facts introduced into evidence are considered admitted, and the court must draw every conclusion and inference therefrom in favor of the state. See Codie v. State, 313 So. 2d 754 (Fla. 1975); Brewer v. State, 413 So. 2d 1217 (Fla. 5th DCA 1982). Because the state presented evidence that the premises were not open to the public, and that in fact the business was closed on the day in question, the trial court correctly denied the motion and submitted the determination to the jury.
Appellant next contends that his sentence for felony petit theft violates double jeopardy principles because, although charged with grand theft, he was convicted only of petit theft. However, it is the very conviction for petit theft, when there are two or more previous theft convictions, that triggers the procedure for sentencing a defendant for felony petit theft. The method of charging, proving and sentencing a defendant for felony petit theft has evolved over the years.
In earlier cases, it was held that it was unnecessary to either plead or prove at trial the prior convictions, but that after the adjudication for petit theft, the prosecutor could then present to the trial judge a record of the prior convictions. See, e.g., Peek v. Wainwright, 393 So. 2d 1175 (Fla. 3d DCA 1981). Peek discussed the earlier case of State v. Harris, 356 So. 2d 315 (Fla. 1978) which had held that felony petit theft was a substantive charge, but that in order to preserve a defendant's due process rights, the jury was not to be made aware of the defendant's prior convictions. Instead, upon the third or greater conviction for petit theft the trial court, in a separate proceeding, would determine the historical fact of prior convictions and questions of identity, following the procedure employed under section 775.084, Florida Statutes, where the burden of proving prior convictions is by a preponderance of evidence.
In State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), the issue before the supreme court was whether a charging document must specifically allege three or more prior convictions for driving under the influence (DUI) when charging a defendant with felony DUI to confer j
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