Pea v. StatePea v. State
- Reporters:
- ,
- Before:
- Thompson, W. Sharp, Peterson
Kenneth Pea was charged by amended information with burglary of a dwelling with a battery (Count I), felony battery (Count II) and possession of drug paraphernalia (Count III).1 Count II was brought under
Pea argues that his conviction for Count I cannot be enhanced to a felony because the state did not allege that he had prior battery convictions as it did in Count II. He argues that he was given insufficient notice of the enhancement and should have been convicted and sentenced for a misdemeаnor battery because the allegations in Count II cannot be used to enhance his conviction and sеntence for Count I. The state argues that Pea was on notice of the possible enhancement because his prior convictions were alleged in Count II of the information. Since Pea cannot show thаt his trial strategy would have changed if the prior convictions were also alleged in Count I, the state arguеs, the sentencing by the trial court should be affirmed.
In State v. Rodriguez, 575 So.2d 1262 (Fla.1991), the defendant was charged with third degree felony DUI pursuant to
In Young v. State, 641 So.2d 401 (Fla. 1994), the supreme court held that a defendant could not be sentenced for felony petit theft where he was found guilty of the lesser included offense of petit theft and the information failed to allege the prior convictions necessary to elevate the offense to a felony. After the defеndant‘s trial, the state had filed a notice of intention to have the defendant sentenced for felony рetit theft under
The information should include language to the effect that in the event the defendant is found guilty of the lesser included offense of petit theft, the defendant is also charged with felony petit theft under section 812.014(2)(d) by reason of the previous convictions of two or more thefts as thereafter described.
Id. n. 4. See also Lewellen v. State, 682 So.2d 186 (Fla. 2d DCA 1996) (holding it was fundamеntal error to elevate defendant‘s petit theft conviction to first-degree misdemeanor under seсtion 812.014(3)(b) where information did not allege prior theft convictions).
In the instant case, Count I of the amended information neither cited subsection 784.03(2) nor alleged prior battery convictions. Thus, Pea did not have proрer notice that if he were found guilty of the lesser included crime of misdemeanor battery he could be convicted of felony battery. Rodriguez; Young. The state could not, as it argues, rely on the allegations in Count II to put Pea on notice that a conviction for battery in Count I would be elevated to felony battery. In Cochenet v. State, 445 So.2d 398 (Fla. 5th DCA), rev. denied, 453 So.2d 45 (Fla.1984), this court revеrsed the defendant‘s first-degree felony conviction for burglary where the defendant was charged with only a sеconddegree felony—burglary with the intent to commit assault. Though the defendant was also charged with and convicted of two counts of aggravated assault, the burglary count did not allege that the assault actually occurred, and this court held the state could not rely on the other counts to supply the allegation. Id. at 399. See also Leone v. State, 590 So.2d 29 (Fla. 5th DCA 1991); Averheart v. State, 358 So.2d 609 (Fla. 1st DCA 1978) (hоlding that a crime used as an enhancement may not be inferred from other counts in the information). Each сount of an information stands on its own, Colwell v. State, 448 So.2d 540 (Fla. 5th DCA 1984), and the state cannot use the allegations of Count II to support аn enhanced conviction and sentence in Count I.
We affirm the sentence in Count II, reverse the conviction in Count I, and remand for sentencing as a battery, a misdemeanor of the first degree.
AFFIRMED in part; REVERSED in part.
W. SHARP and PETERSON, JJ., concur.