Third District Court of Appeal
State of Florida
Opinion filed May 29, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-2078
Lower Tribunal No. 17-18050B
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Richard Wade,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Veronica A.
Diaz, Judge.
Carlos J. Martinez, Public Defender, and James Odell, Assistant Public
Defender, for appellant.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney
General, for appellee.
Before EMAS, C.J., and FERNANDEZ and LOBREE, JJ.
EMAS, C.J.
ON PARTIAL CONFESSION OF ERROR
Richard Wade was charged with one count of burglary of a structure during
a declared state of emergency1 and one count of grand theft in the third degree, a
third-degree felony. Following trial, Wade was convicted of the burglary as
charged, and petit theft in the first degree, a first-degree misdemeanor, with the
jury finding that the value of the property stolen was more than $100 but less than
$300.
Wade appeals from these judgments and sentences, contending that the trial
court erred (1) in permitting the State’s peremptory strike of a prospective juror;
and (2) in denying Wade’s motion, made at the conclusion of the State’s case, to
reduce the grand theft to petit theft, second degree (a second-degree misdemeanor)
because the State failed to introduce any evidence of the value of the items stolen
in the burglary. We find no merit in Wade’s first argument and affirm on that
claim without further discussion.
As to Wade’s second claim, however, the State concedes that it failed to
present any evidence of the value of the liquor that was stolen in the course of the
burglary. To sustain the conviction for petit theft in the first degree, the State was
1 See § 810.02(4), Fla. Stat. (2017) (enhancing burglary of an unoccupied structure
from a third-degree felony to a second-degree felony “if the burglary is committed
within a county that is subject to a state of emergency declared by the Governor
under chapter 252 after the declaration of emergency is made and the perpetration
of the burglary is facilitated by conditions arising from the emergency.”)
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required to present evidence that the value of the liquor stolen during the burglary
was $100 or more. See § 812.014(2)(e), Fla. Stat. (2017) (providing that “if the
property stolen is valued at $100 or more, but less than $300, the offender commits
petit theft of the first degree”); Contes v. State,
(Fla. 3d DCA 2010).
Upon our review of the record, we agree with the State’s proper and
commendable confession of error. In the absence of any evidence of value, the
trial court should have granted Wade’s motion and reduced the third-degree grand
theft charge to petit theft in the second degree, a second-degree misdemeanor. See
§ 812.014(3)(a), Fla. Stat. 2017 (providing in pertinent part: “Theft of any property
not specified in subsection (2) is petit theft of the second degree and a
misdemeanor of the second degree . . .”); Fla. R. Crim. P. 3.620 (providing:
“When the offense is divided into degrees or necessarily includes lesser offenses
and the court, on a motion for new trial, is of the opinion that the evidence does not
sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or
of a lesser offense necessarily included in the one charged, the court shall not grant
a new trial but shall find or adjudge the defendant guilty of the lesser degree or
lesser offense necessarily included in the charge, unless a new trial is granted by
reason of some other prejudicial error.”)
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We affirm the judgment and sentence for burglary. We reverse the
judgment and sentence for first-degree petit theft and remand for the trial court to
enter judgment and sentence for second-degree petit theft, a second-degree
misdemeanor.
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