Maddox v. State

583 So. 2d 1119, 1991 Fla. App. LEXIS 8900, 1991 WL 164381

• Court: District Court of Appeal of Florida
• Decided: August 21, 1991
• Docket: No. 91-650
• Status: Published

Opinion

On Confession of Error

PER CURIAM.

We agree with the appellant’s contention, and the state’s confession, that the trial court erroneously relied on two prior un-counseled petit theft convictions to reclassify the present such conviction to a third degree felony. Leffew v. State, 518 So.2d 1376 (Fla. 2d DCA 1988); see Annechino v. State, 557 So.2d 915 (Fla. 4th DCA 1990). Accordingly, the five year sentence under review is vacated and the cause remanded for the trial court to resentence the defendant to no more than one year imprisonment for a first degree misdemeanor. § 812.014(2)(d), Fla.Stat. (1989).¹

Vacated, remanded.

1 . The disallowance of the two uncounseled petit thefts leaves one valid prior petit theft in existence, thus permitting an enhancement of the present second degree misdemeanor to a first degree misdemeanor. § 812.014(2)(d), Fla.Stat. (1989).