Simmons v. State

777 So. 2d 1217, 2001 Fla. App. LEXIS 2035, 2001 WL 173292

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

Appellant’s motion for rehearing is granted. We withdraw our prior per cu-riam opinion and substitute the following opinion in its stead.

We reverse the lower court s order summarily denying appellant’s motion for post-conviction relief. Fla. R.Crim. P. 3.850. As argued by the appellant in his motion for rehearing below, Count II of the information charging felony petit theft failed to specifically charge two petit theft offenses as required by Smith v. State, 771 So.2d 1189 (Fla. 5th DCA 2000).

Accordingly, since the state did not properly charge the appellant with the required number of prior petit theft convictions, the conviction for felony petit theft is reversed. The lower court is directed to resentence appellant on Count II without the enhancement.

REVERSED AND REMANDED.

THOMPSON, C.J., COBB and PLEUS, JJ., concur.