RICKY J. CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carter was convicted of both armed robbery and kidnapping for forcing his way into a victim's apartment, stealing valuables, and then tying her to a towel rack before leaving. The appellate court upheld the convictions, finding that the confinement element met the statutory kidnapping requirements and was not merely incidental to the robbery under Faison v. State.
The kidnapping conviction should be affirmed because the tying up of the victim met all three Faison criteria: it was not slight or merely incidental, it was not inherent in the armed robbery itself, and it had independent significance by giving the defendant time to make a clean getaway.
[1] Confinement and movement are not sufficient to sustain a kidnapping charge when they are slight, inconsequential, and merely incidental to another offense.
[2] To sustain a kidnapping charge occurring in conjunction with another offense, the confinement and movement must not be slight, inconsequential, and merely incidental to t…
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Join FLexlaw to unlock all legal intelligence“Under Faison v. State, supra, the confinement or movement necessary to facilitate the commission of another crime within the meaning of the above statute: (1) must not be slight, inconsequential and merely incidental to the other crime; (2) must not be of the kind inherent in the nature of the other crime; and (3) 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.”
Establishes the three-part Faison test that determines when confinement can support a separate kidnapping charge.
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Join FLexlaw to unlock all legal intelligenceCarter and an accomplice accosted a victim outside her apartment, forced their way in at gunpoint, and forced her onto a couch while removing her neck…
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NIMMONS, Judge.
Carter claims that his kidnapping conviction should be reversed because his actions purporting to constitute the kidnapping charge were inconsequential or inherent in the armed robbery of which he was also convicted and that the separate kidnapping conviction was impermissible under the Supreme Court’s holding in Faison v. State, 426 So. 2d 963 (Fla.1983). We disagree and affirm.
The defendant and an accomplice accosted the victim outside her apartment and, armed with guns, forced their way into her apartment. The robbers pushed the victim down on the couch and forcibly removed her necklaces from her neck. She was told that she would be killed if she screamed. The defendant and his accomplice ransacked the apartment, taking jewelry and other items, after which the defendant ordered the victim into the bathroom.
The defendant then entered the bathroom and told the victim he was going to tie her up so that he and his accomplice could get away. The victim testified as to what transpired thereafter:
A I told him he didn’t have to tie me up, I wasn’t going to stop them from getting away. He said, I’m going to tie you up and you can get aloose. We just want to get away. So he got a belt that I had to a dress in the hall closet and he tied my arms up to the towel rack and then they left.
Q Okay. How did he tie you up? A He told me to put my arms out like this here and he wrapped the cord, the belt around my arms and then tied it to the towel rack.
Soon after the robbers left, the following transpired according to the victim:
Q Okay. What happened next?
A The phone went to ringing and I popped the thing, the belt from the towel rack, and then I twist my arms and got it out and I—
Q Did it hurt you when you popped it?
A Yes, I had bruises on my arm.
* * * * * *
Q What happened then?
A I ran to the phone and picked the phone up. It was my brother. He asked me where I had been and I say — and I started crying and screaming and I told him what happened and he came round there.
Section 787.01(l)(a)2., Florida Statutes (1983), under which the defendant was charged, provides:
(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:
* * * sjc * *
2. Commit or facilitate commission of any felony.
Under Faison v. State, supra, the confinement or movement necessary to facilitate the commission of - another crime within the meaning of the above statute: (1) must not be slight, inconsequential and merely incidental to the other crime; (2) must not be of the kind inherent in the nature of the other crime; and (3) 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. Id at 965.
The fact that the defendant knew, when he tied up the victim, that she would be able to free herself by the use of determined effort — to the point of bruising her arms — does not, in our view, disqualify this case from meeting the Faison criteria. The defendant’s purpose in tying up the victim was to buy time in making a “clean getaway.” The fact that he was “charitable” enough with his victim to buy himself only a little time matters not. We have considered the authorities relied upon by the defendant, including Friend v. State, 385 So. 2d 696 (Fla. 1st DCA 1980), and Chaney v. State, 464 So. 2d 1261 (Fla. 1st DCA 1984), and find them to be distinguishable.
AFFIRMED.
MILLS, J., concurs.
PEARSON, TILLMAN, (Ret.) Associate Judge, dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brinson v. State, 483 So. 2d 13 (Fla. 1st DCA 1985)…for resentencing if proper. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. MILLS and THOMPSON, JJ., concur. . Robert Brinson was acquitted on the three kidnapping counts. . Carter v. State, 468 So. 2d 370 (Fla. 1st DCA 1985), cited by the state, is distinguishable from this case by the fact that in Carter the victim was accosted outside her apartment, and was then forced inside the apartment; movement of a victim, outside to inside a building, may no…
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Johnson v. State, 509 So. 2d 1237 (Fla. 4th DCA 1987)…ed. There the defendant, subsequent to robbing a convenience store, confined the clerk to a bathroom and then forced the victim to wait on customers. The court held that this conduct was an effort to lessen the risk of detention. In Carter v. State, 468 So. 2d 370 (Fla. 1st DCA), rev. denied, 478 So. 2d 53 (Fla.1985), the defendant tied the robbery victim to a towel rack in the bathroom with a belt, saying, “I’m going to tie you up and you can get aloose (sic). We just want to get away.” Id. 468 So. 2d at 370…
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Ferguson v. State, 519 So. 2d 747 (Fla. 4th DCA 1988)…lly lessening the risk of detention. Cf Faison v. State; Johnson v. State; Lamarca v. State, 515 So. 2d 309 (Fla. 3d DCA 1987); Sanborn v. State, 513 So. 2d 1380 (Fla. 3d DCA 1987); Taylor v. State, 481 So. 2d 97 (Fla. 3d DCA 1986); Carter v. State, 468 So. 2d 370 (Fla. 1st DCA), rev. denied, 478 So. 2d 53 (Fla.1985); Sorey v. State, 419 So. 2d 810 (Fla. 3d DCA 1982); Dowdell v. State, 415 So. 2d 144 (Fla. 1st DCA 1982), rev. denied, 429 So. 2d 5 (Fla.1983); Harkins v. State, 380 So. 2d 524 (Fla. 5th DCA 1980…
Previewing 3 of 8 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)
- Friend v. State, 385 So. 2d 696 (Fla. 1st DCA 1980)
- Glenard Chaney v. State, 464 So. 2d 1261 (Fla. 1st DCA 1985)