Opinion
No. 88-03207.
February 21, 1990.
Appeal from the Circuit Court, Polk County, Jesse C. Barber, Acting J.
James Marion Moorman, Public Defender, and Lawrence D. Shearer, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dell H. Edwards, Asst. Atty. Gen., Tampa, for appellee.
The defendant, Anthony Lewett Whitehurst, appeals his judgments and sentences of trespass on property after warning, a violation of section 810.09(1)(b), Florida Statutes (1987), and petit theft, a second-degree misdemeanor, section 812.014(1)(d) Florida Statutes (1987). He raises two issues on appeal, only one of which has merit.
At the sentencing hearing, it was alleged that the defendant had been convicted of at least one prior petit theft. The trial court accordingly enhanced the defendant's penalty pursuant to section 812.014(1)(d), Florida Statutes (1987), and sentenced him to six months in county jail. The defendant argues that no evidence of a previous theft conviction was introduced, thereby rendering his enhanced sentence improper. We agree.
We affirm the defendant's convictions but remand for resentencing. If, on remand, the state introduces suitable proof of a prior conviction, the trial court may again impose an enhanced sentence. Otherwise, the court shall modify the first-degree misdemeanor adjudication to a second-degree misdemeanor and resentence the defendant to a term not to exceed the second-degree misdemeanor penalty of sixty days. § 775.082(4)(b), Fla. Stat. (1987).
LEHAN and THREADGILL, JJ., concur.