RUSSELL SANBORN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Russell Sanborn appeals convictions for first-degree murder, burglary, robbery, kidnapping, and aggravated battery arising from a home invasion where he held the Abramsons at gunpoint, robbed them, and killed their daughter. The appellate court reverses the kidnapping convictions due to the trial court's failure to instruct the jury on the lesser included offense of false imprisonment, but affirms all other convictions.
The court held that the Abramsons' confinement satisfied the kidnapping statute because it was not slight or incidental and had independent significance in facilitating the commission of other felonies. However, the trial court committed reversible error by failing to instruct the jury on false imprisonment as a lesser included offense of kidnapping, necessitating reversal of the kidnapping convictions and remand for a new trial on those counts.
[1] A confinement is not slight, inconsequential, and merely incidental to another crime, nor inherent in the nature of the other crime, if it has independent significance in…
[2] A defendant preserves an issue for appellate review even if counsel is misinformed as to the law, as long as the error is otherwise properly raised.
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Join FLexlaw to unlock all legal intelligence“In order to obtain a conviction, the state must prove a confinement necessary to facilitate the commission of another crime and that the confinement is not slight, inconsequential, and merely incidental to the other crime; is not inherent in the nature of the other crime; and has independent significance in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
Establishes the legal standard for kidnapping convictions when the offense is alleged to facilitate another felony
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Join FLexlaw to unlock all legal intelligenceLate one night, Sanborn entered the bedroom where Mr. and Mrs. Abramson were sleeping. He threatened to kill them if they didn't "shut up," tied them …
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BASKIN, Judge.
Russell Sanborn appeals convictions and sentences for first-degree murder, burglary of a dwelling, two counts of robbery with a deadly weapon, two counts of kidnapping, and aggravated battery with a deadly weapon. He questions the validity of the kidnapping convictions and challenges the sentences imposed for the other charges. We find merit only in the assertion that the trial court should have instructed the jury as to the lesser included offense of false imprisonment; we therefore reverse the kidnapping convictions and remand for a new trial on those counts.
At trial, the state presented evidence that late one night Mrs. Abramson discovered Sanborn, an acquaintance of her daughter, beside the bed in which Mrs. Abramson and her husband had been sleeping. After threatening to kill them if they didn’t “shut up,” Sanborn tied them up, cut Mr. Abramson’s ear, took money and jewelry, and left the house with their daughter in one of their cars. The daughter’s body was found in a field. She had been stabbed to death.
Sanborn’s first contention is that the Abramsons were not kidnapped because they were not moved from their bed. The state responds that even though the Abramsons were not moved, they were nevertheless kidnapped, according to the pertinent provisions of section 787.01, Florida Statutes (1983).
Section 787.01(l)(a) provides in 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.
The state argues that the evidence establishes the charges of kidnapping “with the intent to commit or facilitate the commission of any felony,” § 787.01(l)(a)2, and kidnapping “with intent to inflict bodily harm upon or to terrorize the victim.” § 787.01(l)(a)3.
In order to obtain a conviction, the state must prove a confinement necessary to facilitate the commission of another crime and that the confinement is not slight, inconsequential, and merely incidental to the other crime; is not inherent in the nature of the other crime; and has independent significance in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. Faison v. State, 426 So. 2d 963, 965 (Fla.1988). Here, the evidence demonstrates that the Abramsons’ confinement was not “slight, inconsequential and merely incidental,” Faison, 426 So. 2d at 965 (quoting State v. Buggs, 219 Kan. 203, 216, 547 P. 2d 720, 731 (1976)), and no basis for reversal on that ground exists. See Johnson v. State, 509 So. 2d 1237 (Fla. 4th DCA 1987). Compare Kirtsey v. State, 511 So. 2d 744 (Fla. 5th DCA 1987) (where victims are moved about interior of store and forced to open safe, acts are slight and merely incidental to robbery offense). The evidence also supports conviction under section 787.-01(1)(a)3.
Next, Sanborn argues that the trial court should not have overruled his counsel’s objection to the jury instruction as to kidnapping and, relying on Mills v. State, 407 So. 2d 218 (Fla. 3d DCA 1981), he cites error in the trial court’s failure to instruct the jury on the lesser included offense of false imprisonment. We agree that the court’s omission constitutes reversible error. Cabe v. State, 408 So. 2d 694 (Fla. 1st DCA 1982), review denied, 435 So. 2d 821 (Fla.1983); Mills; see State v. Abreau, 363 So. 2d 1063 (Fla.1978). Contra Williamson v. State, 510 So. 2d 335 (Fla. 4th DCA 1987). We reject the state’s contention that San-born failed to preserve the point for appellate review. Although Sanborn’s counsel was misinformed as to the law, he nevertheless preserved the error for appellate disposition.
We find no merit in the remaining point. Harmon v. State, 438 So. 2d 369 (Fla.1983); Alvarez v. State, 358 So. 2d 10 (Fla.1978); Taylor v. State, 481 So. 2d 97 (Fla. 3d DCA 1986); Vileta v. State, 454 So. 2d 792 (Fla. 2d DCA 1984). Contra Blackshear v. State, 480 So. 2d 207 (Fla. 1st DCA 1985), appeal after remand, 513 So. 2d 174 (Fla. 1st DCA 1987). For these reasons, we reverse the kidnapping convictions and remand for a new trial on the kidnapping counts. We affirm the other convictions.
Affirmed in part; reversed in part; remanded.
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State v. Sanborn, 533 So. 2d 1169 (Fla. 1988)…en. and Michael J. Neimand, Asst. Atty. Gen., Miami, for petitioner. John H. Lipinski, Sp. Asst. Public Defender, Miami, for respondent. OVERTON, Justice. This is a petition to review the Third District Court of Appeal's decision Sanborn v. State, 513 So. 2d 1380 (Fla. 3d DCA 1987), in which that court found false imprisonment is a necessarily lesser included *1170 offense of kidnapping, and in so doing acknowledged conflict with Williamson v. State, 510 So. 2d 335 (Fla. 4th DCA 1987). We have jurisdiction.…
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Perez v. State, 566 So. 2d 881 (Fla. 3d DCA 1990)…d 470, 472 (Fla. 5th DCA 1983). In the present case, we conclude that the Faison test has been satisfied with respect to the daughter and housekeeper under the reasoning of Rodriguez v. State, 558 So. 2d 211 (Fla. 3d DCA 1990) and Sanborn v. State, 513 So. 2d 1380, 1381-82 (Fla. 3d DCA 1987), aff'd, 533 So. 2d 1169 (Fla.1988). The restraint was not slight, inconsequential, or merely incidental to the other crime, and was not inherent in the crime. It had independent significance as it made the robbery easier…
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Marsh v. State, 546 So. 2d 33 (Fla. 3d DCA 1989)…after he escaped from the apartment. This being so, the requirements of Faison v. State, 426 So. 2d 963 (Fla.1983), are met and an armed kidnapping was established in this case. Merritt v. State, 516 So. 2d 290 (Fla. 1st DCA 1987); Sanborn v. State, 513 So. 2d 1380 (Fla. 3d DCA 1987), aff'd on other grounds, 533 So. 2d 1169 (Fla.1988). Second, we conclude that the second reason given by trial court for departing downward from the sentencing guidelines fully justified the subject departure. The codefendant in…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- Alphonso Alvarez v. State, 358 So. 2d 10 (Fla. 1978)
- Mills v. State, 407 So. 2d 218 (Fla. 3d DCA 1981)
- Harmon v. State, 438 So. 2d 369 (Fla. 1983)
- Kirtsey v. State, 511 So. 2d 744 (Fla. 5th DCA 1987)
- Vileta v. State, 454 So. 2d 792 (Fla. 2d DCA 1984)
- Williamson v. State, 510 So. 2d 335 (Fla. 4th DCA 1987)
- State v. Cabe, 435 So. 2d 821 (Fla. 1983)
- Sosa v. Knight-Ridder Newspapers, Inc., 435 So. 2d 821 (Fla. 1983)