GEORGE W. HRINDICH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Hrindich appealed his convictions for attempted sexual battery and false imprisonment. The court affirmed the attempted sexual battery conviction but reversed the false imprisonment conviction, finding that any confinement was incidental to and inseparable from the attempted sexual battery itself.
The court affirmed the attempted sexual battery conviction but reversed the false imprisonment conviction. The confinement of the victim in the automobile was incidental to and inherent in the nature of the attempted sexual battery, and therefore did not constitute a separate crime of false imprisonment.
[1] A conviction for kidnapping with the intent to inflict bodily harm or terrorize a victim is not subject to the "incidental to the commission of another crime" test applic…
[2] A trial court errs in granting a judgment of acquittal on a false imprisonment conviction when there is evidence to sustain a conviction for kidnapping with the intent to…
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Join FLexlaw to unlock all legal intelligence“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement: (a) Must not be slight, inconsequential and merely incidental to the other crime; (b) Must not be of the kind inherent in the nature of the other crime; and (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
The Faison test for determining whether detention constitutes a separate crime of kidnapping or false imprisonment
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Join FLexlaw to unlock all legal intelligenceThe victim voluntarily accompanied Hrindich in his automobile. She made no attempt to leave and was not restrained until the attempted sexual battery …
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FRANK D. UPCHURCH, Jr., Judge.
Appellant appeals from his convictions for attempted sexual battery and false imprisonment.
We affirm the judgment as to attempted sexual battery but reverse the judgment of conviction for false imprisonment.
In Faison v. State, 426 So. 2d 963 (Fla.1983), the supreme court approved of the following test to determine whether the detention of a victim of a sexual battery also constitutes a separate crime of kidnapping: 1
[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
426 So. 2d at 965.
The victim in the case before us voluntarily accompanied appellant in his automobile. Until the attempted sexual battery commenced, the victim had made no attempt to leave and was not restrained. While she was confined in the front seat of the car during the course of the event, all confinement was incidental to the attempted sexual battery. See Simpkins v. State, 395 So. 2d 625 (Fla. 1st DCA 1981); Friend v. State, 385 So. 2d 696 (Fla. 1st DCA 1980).
AFFIRMED in part and REVERSED in part.
ORFINGER, C.J., and COWART, J., concur. .Section 787.02, Florida Statutes (1981), dealing with the crime of false imprisonment provides:
(l)(a) “False imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will with any purpose other than those referred to in § 787.01.
Section 787.01, Florida Statutes (1981), defines the crime of kidnapping and provides in relevant part:
(l)(a) ‘Kidnapping’ means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4.Interfere with the performance of any governmental or political function, (emphasis added)
Appellant argues that since the crime of false imprisonment excludes confinement or detention for the purpose of committing or facilitating commission of any felony, appellant could not be charged with or convicted of the crime since the evidence reveals that appellant confined the victim solely for the purpose of committing or facilitating the commission of an attempted sexual battery, a felony.
False imprisonment has been held to be a lesser included offense of kidnapping. Cabe v. State, 408 So. 2d 694 (Fla. 1st DCA 1982). See also Mills v. State, 407 So. 2d 218 (Fla. 3d DCA 1981). We need not rule on appellant’s point at this time for it is clear that whether false imprisonment or kidnapping, the confinement was incidental to the offense of attempted sexual battery.
Cases With Similar Vibessemantic neighbors from the corpus
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Chaeld v. State, 599 So. 2d 1362 (Fla. 1st DCA 1992)…properly denied the appellant’s request for a Faison instruction. We note, however, probable conflict with Keller v. State, 586 So. 2d 1258, 1261-62 (Fla. 5th DCA 1991); Perez v. State, 566 So. 2d 881, 883 (Fla. 3d DCA 1990); and Hrindich v. State, 427 So. 2d 212, 213 (Fla. 5th DCA), petition for rev. dismissed, 431 So. 2d 989 (Fla.1983). Finally, we also affirm the judge’s denial of the appellant’s alternative request to instruct the jury that he could not be found guilty of false imprisonment if his restr…
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Keller v. State, 586 So. 2d 1258 (Fla. 5th DCA 1991)…eme court has held that the kidnapping statute does not apply to unlawful confinements or movements that are incidental to other felonies. Faison v. State, 426 So. 2d 963 (Fla.1983); Mobley v. State, 409 So. 2d 1031 (Fla.1982). In Hrindich v. State, 427 So. 2d 212 (Fla. 5th DCA), review denied, 431 So. 2d 989 (Fla.1983), this court relied on Faison and reversed a conviction for false imprisonment because the victim’s confinement during an attempted sexual battery was incidental to the crime.8 The same standar…
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State v. Mendoza, 444 So. 2d 570 (Fla. 3d DCA 1984)…tes (1981). The trial court sentenced Mendoza to life imprisonment, requiring him to serve a minimum mandatory prison term of twenty-five years before becoming eligible for parole. After his conviction was affirmed on appeal, see Mendoza v. State, 427 So. 2d 212 (Fla. 3d DCA 1983), Mendoza moved in the trial court to correct his sentence, asserting that since the death penalty can no longer be imposed for sexual battery, the offense is no longer a capital crime punishable by a denial of eligibility of parol…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- Mills v. State, 407 So. 2d 218 (Fla. 3d DCA 1981)
- Friend v. State, 385 So. 2d 696 (Fla. 1st DCA 1980)
- Simpkins v. State, 395 So. 2d 625 (Fla. 1st DCA 1981)
- Cabe v. State, 408 So. 2d 694 (Fla. 1st DCA 1982)