Opinion
No. 92-2522.
October 20, 1993. Rehearing Denied January 10, 1994.
Appeal from the Circuit Court for Broward County; Susan Lebow, Judge.
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Edward L. Giles, Asst. Atty. Gen., West Palm Beach, for appellee.
The jury having found appellant guilty, the trial court so adjudicated him and sentenced him to five years' incarceration on a witness tampering charge and one year for petit theft, the latter being a lesser included offense of the robbery with which appellant was charged.
We reject appellant's arguments directed to his convictions for witness tampering and petit theft and affirm them.
We agree with appellant's argument that the trial court incorrectly sentenced him on the conviction for petit theft. Section 775.082(4)(b), Florida Statutes (1989), provides for a sentence of not more than sixty days for a misdemeanor of the second degree. The state concedes that nothing in the record shows appellant to have had a prior petty theft conviction sufficient to reclassify the instant offense as a misdemeanor of the first degree. The trial court sentenced appellant to a term of one year to run concurrent with his sentence of five years on the witness tampering charge. We reverse this point on appeal and remand only for resentencing on the conviction for petit theft.
GLICKSTEIN and KLEIN, JJ., and GROSS, ROBERT M., Associate Judge, concur.