JAMES FLOYD KIRTSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kirtsey appeals his kidnapping conviction arising from a Pizza Hut robbery where he and a confederate confined and moved one employee. The Florida appellate court reversed the kidnapping conviction, holding that the confinement and movement were slight and merely incidental to the robbery and did not satisfy all three criteria required to sustain a kidnapping charge when occurring in conjunction with another offense.
The kidnapping conviction was reversed because although the confinement and movement were not inherent in robbery and arguably facilitated the robbery, they were slight and merely incidental to the robbery offense. All three Faison criteria must be satisfied to sustain kidnapping when it occurs in conjunction with another offense, and the first criterion was not met here.
[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“the confinement and movement: (a) must not be slight, inconsequential, and merely incidental to the other offense; and (b) must not be of the kind inherent in the nature of the other offense; and (c) must have some significance independent of the other offense in that it makes the other offense substantially easier to commit or substantially lessens the risk of detection.”
The three-part test from Faison v. State that must be satisfied to sustain a kidnapping conviction when occurring in conjunction with another offense.
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Join FLexlaw to unlock all legal intelligenceKirtsey and a male confederate forced their way into a Pizza Hut during closing. One employee was tied up and moved about the store's interior. The ot…
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SHARP, Judge.
Kirtsey appeals from his conviction and sentence for kidnapping,1 arguing that there was insufficient evidence of incidental acts, separate from a simultaneously occurring attempted robbery,2 to establish kidnapping. We agree and reverse.
Kirtsey and a male confederate forced their way into a Pizza Hut as the last two employees were closing the store. One of the employees was tied up and moved about the interior of the store. The other was forced to open the safe and threatened with a gun. No other acts of confinement or movement occurred.
The supreme court set out three criteria to be used in determining whether a kidnapping charge is sustainable when it occurs in conjunction with another offense. Faison v. State, 426 So. 2d 963 (Fla.1983). In such situations, the confinement and movement:
(a) must not be slight, inconsequential, and merely incidental to the other offense; and (b) must not be of the kind inherent in the nature of the other offense; and (c) must have some significance independent of the other offense in that it makes the other offense substantially easier to commit or substantially lessens the risk of detection. (Emphasis added).
Faison. See also, Brinson v. State, 483 So. 2d 13 (Fla. 1st DCA 1985), review denied, 492 So. 2d 1335 (Fla.1986); Chaney v. State, 464 So. 2d 1261 (Fla. 1st DCA), review denied, 479 So. 2d 118 (Fla.1985); Simpkins v. State, 395 So. 2d 625 (Fla. 1st DCA 1981).
The confinement and movement in this case were limited to the interior of the restaurant. While these acts were not inherent in the offense of robbery (b), and arguably may have made the attempted robbery easier to commit (c), the acts were slight and merely incidental to the robbery offense (a). All three criteria must be met in order to sustain a kidnapping offense in such circumstances. Accordingly, we reverse the kidnapping conviction,3 but affirm the convictions and sentences for attempted robbery and use of a firearm.
AFFIRMED IN PART, REVERSED IN PART.
UPCHURCH, C.J., and COWART, J., concur. . §§ 787.01(l)(a) & (2), FIa.Stat. (1985).
. §§ 777.04(1) & (4); 812.13(1) & (2)(a); 775.-087(2)(a), Fla.Stat. (1985). Kirtsey was convicted of the attempted robbery and a third charge, use of a firearm while attempting to commit a felony. § 790.07(2), Fla.Stat. (1985).
. However, conviction for false imprisonment in conjunction with a burglary is sustainable under a similar fact pattern. State v. Lindsey, 446 So. 2d 1074 (Fla. 1984).
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Citator
Cited By (16 total)
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Germaine Berry v. State, 668 So. 2d 967 (Fla. 1996)…however, that some of the confusion in the application of Faison can be traced to the blurring of the distinction between “movement” and “confinement,” which are treated in the disjunctive in the Faison test. This is exemplified by Kirtsey v. State, 511 So. 2d 744 (Fla. 5th DCA 1987), in which the defendant robbed a Pizza Hut by tying up one employee and moving the employee about the interior of the store and forcing another employee to open the safe by threatening that employee with a gun. The court held tha…
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Walker v. State, 604 So. 2d 475 (Fla. 1992)…GRIMES, Justice. We have for review Walker v. State, 585 So. 2d 1107 (Fla. 2d DCA 1991), because of direct conflict with Kirtsey v. State, 511 So. 2d 744 (Fla. 5th DCA 1987). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. Walker was convicted of two counts of armed robbery, three counts of kidnapping with a weapon, and one count of kidnapping. On appeal, Walker co…
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GAY v. State, 607 So. 2d 454 (Fla. 1st DCA 1992)…easier of commission or substantially lessens the risk of detection. Faison v. State, 426 So. 2d 963, 965 (Fla.1983). Satisfaction of each of the three prongs of the Faison test is necessary to support a conviction for kidnapping. Kirtsey v. State, 511 So. 2d 744, 745 (Fla. 5th DCA1987). In the present case, we find the movement of the children to the nature trail against their will (applying the statutory presumption) was not slight, inconsequential and incidental to the crime. Second, movement of the child…
Previewing 3 of 16 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)
- Simpkins v. State, 395 So. 2d 625 (Fla. 1st DCA 1981)
- Brinson v. State, 483 So. 2d 13 (Fla. 1st DCA 1985)
- State v. Lindsey, 446 So. 2d 1074 (Fla. 1984)
- Glenard Chaney v. State, 464 So. 2d 1261 (Fla. 1st DCA 1985)