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Smith v. State10/13/2000
urisdiction in the circuit court and to comply with due process of law. Analogizing to State v. Harris, supra, where the court construed the felony petit theft statute, the court held that the combined existence of three or more DUI convictions was an element of the substantive offense of felony DUI which must be noticed and proved beyond a reasonable doubt. Employing the reasoning of Harris, the court held that the state must allege the specific prior DUI convictions in the charging document, but that the trial court must withhold from the jury any allegations or facts concerning the prior DUI offenses in order to protect the defendant's presumption of innocence. Instead, after a conviction for the charged DUI offense, the trial court would conduct a separate proceeding in open court without a jury, where defendant would have full rights of confrontation, cross-examination and representation by counsel and where the state would be required to prove the existence of three or more prior DUI convictions no longer by a preponderance of the evidence, but beyond a reasonable doubt.
There is no doubt that the holding of Rodriguez applies equally well to a conviction for felony petit theft. The Rodriguez court adopted the requirement of Harris that the prior offenses necessary to elevate the current offense to a felony must be specifically alleged in the charging document. It also approved the procedure outlined in Harris that after conviction a separate proceeding be held before the court where the state must prove the prior convictions, but made clear that the burden of proof was beyond a reasonable doubt. We now hold that in seeking a conviction for felony petit theft, the state must specifically allege in the charging document the two or more prior petit theft convictions, the existence of which are not to be disclosed to the jury during the initial trial, and after conviction prove their existence beyond a reasonable doubt in a bifurcated proceeding before the same jury, unless a jury has been waived by the defendant. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000) (where defendant charged with felony DUI requests a jury trial, the jury, unless waived by defendant, must also decide the issue regarding the three prior convictions.
Here, although the state charged the defendant with grand theft, and noted in the amended information that defendant had been previously convicted two or more times of petit theft, it failed to allege the convictions with the required specificity. Because the state did not properly charge or prove the prior convictions, the conviction for felony petit theft is reversed with direction to sentence defendant for petit theft as in the verdict of the jury.
Appellant's final point is that there was insufficient evidence to sustain his conviction for possession of drug paraphernalia. The arresting officer testified that he found a piece of copper screen/mesh wrapped in plastic that contained a residue which tested positive for cocaine in a field test, and that based on his professional training and experience it was a device typically used as a filter on a crack pipe. Appellant cites to L.R. v. State, 557 So. 2d 121 (Fla. 3d DCA 1990) as authority for the proposition that a positive field test of a substance suspected to be cocaine is insufficient evidence to sustain a conviction for possession of cocaine. Appellant was not charged with possession of cocaine, but of paraphernalia and the evidence here was sufficient to sustain that conviction.
AFFIRMED in part; REVERSED in part.
THOMPSON, C.J., and GRIFFIN, J., concur.
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