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Court Discusses the Elements of Petit Larceny

In this petit larceny case, this court reversed appellant’s conviction for robbery and “remanded for judgment and sentence for petit larceny.” However, after remand, at the state’s request, the trial court sentenced appellant for felony petit theft. A Seminole Petit Larceny Lawyer said that, appellant appeals, arguing that the charging document charging him with robbery did not allege that he had two or more prior petit theft convictions which convictions are essential elements of the substantive criminal offense of felony petit theft and, therefore, he was never charged with felony petit theft and his sentence for that crime violates his constitutional due process rights.
The issue in this case is whether the Court erred in sentencing appellant for the felony of petit theft.

A New York Criminal Lawyer said the Court said that, in a 1978 case, the Florida Supreme Court held (1) that the felony petit theft statute (then section 812.021(3), now section 812.014(2)(c), Florida Statutes created a substantive offense, and (2) that the required two or more prior petit larceny convictions are elements of that substantive offense which must be specifically alleged and proved. To avoid jury prejudice against the accused, that case also held that proof of the prior petit theft convictions can be made to the court in a separate proceeding after the jury finds the defendant guilty of the charged petit larceny offense.

The Court said that the holding in the 1978 case was not the only construction available. The Supreme Court could have found that section 812.014(2)(c), Florida Statutes (the felony petit theft statute), did not create a separate substantive criminal offense but only provided for an enhanced punishment for a third or subsequent conviction of the substantive offense of petit theft. A Bronx Criminal Lawyer said the difference between these views is far more than semantics and goes to the heart of the most serious double jeopardy and due process problems presented in contemporary criminal cases in Florida. In view of later thinking, it is possible that if the Supreme Court reconsidered the matter today, it might revise its holding as to the substantive nature of the offense named felony petit theft. The reason is this: substantively, the offense of felony petit theft bears the identical relationship to the substantive offense of petit theft as grand theft does to petit theft. Likewise, substantively, felony petit theft and grand theft each bears the same relationship to other theft offenses, such as robbery. Petit theft is unquestionably a basic substantive offense and a necessarily lesser offense of all other theft offenses including felony petit theft, grand theft, and robbery. All other theft offenses are aggravated forms of theft and all contain elements not required of petit theft or other theft offenses, i.e., felony petit theft requires prior petit theft convictions, grand theft requires an element relating to value or special property character, and robbery requires an element as to force, violence, or fear. Before the said case was decided in 1978, it was only generally understood that the substantive nature of a criminal offense was determined by its essential constituent elements. Therefore, at that time it was understandable that the court found that two or more prior convictions of petit theft constituted an essential element of the offense of felony petit theft and, after further finding that this element distinguished the felony petit theft offense from all other offenses, held felony petit theft to be a substantive offense whose elements, including the two or more prior petit theft convictions, must be alleged in the charging document before an accused could be convicted of that offense, whether as a specifically charged offense or a lesser included offense of some greater charged offense. This was the same analysis that supported the 1985 holding, i.e., because grand theft and robbery each had a different element, each was a substantively different offense and a defendant could be convicted of both offenses based on a single theft without violating constitutional double jeopardy.

However, more recently, further analysis of the elusive concept of “substance” in criminal offenses has suggested that all elements of criminal offenses are not the same. Some are “core” or “nuclear” elements, which describe and differentiate substantive offenses (a single “evil”), while others are “degree” elements (or enhancing factors), which serve only to subdivide one basic substantive offense into degrees of culpability justifying varying levels of punishment. Accepting this analysis, but calling the one substantive offense involved in each of two statutes the “same evil,” the Supreme Court decided in its previous cases.

In this case, the state relies on a 1981 case for the position that when the accused is charged with any felony of which petit theft is a necessarily lesser included offense, if after a jury verdict finds guilt as to petit theft and two or more prior petit theft convictions are proved to the judge, the accused can be lawfully convicted and sentenced for felony petit theft although the charging document does not allege the prior convictions. One case also held that prior petit theft convictions do not have to be alleged in the charging document and proved “in all instances” before an accused may be found guilty of felony petit theft.

The federal and state constitutions provide that in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation against him and that no person shall be deprived of life, liberty, or property without due process of law. A criminal charging document is adequate to charge, to inform the accused of the nature and cause of the accusation against him, to give due process notice of, and to place a defendant in jeopardy as to, a particular criminal offense only if the charging document alleges sufficient ultimate facts to support every essential constituent element of such offense.

A New York Sex Crimes Lawyer said a conviction of a defendant of a crime with which he was not charged and, accordingly, for which he was not lawfully tried, violates the constitutional requirements that an accused be informed of the accusation against him and also violates the due process clauses of the federal and state constitutions and constitutes fundamental error. In holding that a defendant can be adjudicated guilty of, and punished for, the offense of felony petit theft even though the charging document fails to allege that the defendant has been convicted of two or more prior petit thefts, the holdings the prior cases directly conflict with the 1978 case, conflict with the above constitutional principles.

Accordingly, the Court held that appellant’s convictions of, and punishment for, felony petit theft should be reversed and this cause remanded for adjudication of, and sentence for, petit theft as directed and mandated by our prior opinion in this case.
The Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation against him and that no person shall be deprived of life, liberty, or property without due process of law. If there has been a violation of this constitutional right in your case, seek the representation of a Seminole Criminal Attorney and Seminole Petit Larceny Attorney in order to correct the wrong doing of the Court. Seminole Grand Larceny Attorney at Stephen Bilkis and Associates will help you and make sure that your constitutional rights will be upheld.