SHANNON NEAL MARSH A/K/A MIKE CAIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Marsh appealed his conviction for armed robbery and two counts of armed kidnapping, and the state cross-appealed the 30-year sentence as an improper downward departure from sentencing guidelines. The court affirmed both the conviction and sentence, finding the kidnapping counts supported by evidence and the downward departure justified by sentencing disparity with the codefendant.
The conviction for armed kidnapping was proper because the victim's confinement was not incidental to the robbery and substantially furthered the robbery while reducing risk of detention. The 30-year downward departure sentence was justified by the need to achieve sentencing proportionality with the more leniently sentenced codefendant.
[1] Confinement is not inconsequential or incidental to armed robbery when a victim is bound, gagged, and blindfolded for an extended period while property is stolen.
[2] Confinement is not inherent in armed robbery if the crime could have been committed without restraining the victim.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The confinement was not inherent in the armed robbery because the latter crime could have been committed without binding and gagging the victim.”
Establishes that the kidnapping was a separate, distinct crime and not merely incidental to the robbery.
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Join FLexlaw to unlock all legal intelligenceMarsh and a codefendant committed armed robbery against a victim. During the crime, they bound, gagged, blindfolded, and wrapped the victim in blanket…
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PER CURIAM.
This is an appeal by the defendant Shannon Neal Marsh from a judgment of conviction and a thirty-year sentence for armed robbery and two counts of armed kidnapping based on an adverse jury verdict; this is also a cross appeal by the state from the thirty-year sentence imposed as being an alleged improper departure downward from the sentencing guidelines. We affirm.
First, we find no merit in the defendant’s only point on appeal, namely, that the trial court erred in failing to grant his motion for judgment of acquittal as to one of the armed kidnapping counts (count III). (1) Plainly, the confinement of the victim in this case was not slight or inconsequential; nor was it incidental to committing the armed robbery herein. The victim was bound, gagged, blindfolded, and wrappéd in blankets for up to half an hour while the defendant and the codefendant ransacked the apartment where the victim was found, and stole the victim’s money and house keys. (2) The confinement was not inherent in the armed robbery because the latter crime could have been committed without binding and gagging the victim. (3) The confinement obviously made it easier for the defendant to commit his armed robbery and substantially lessened the risk of detention 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 this case, although equally culpable, was sentenced to nine years imprisonment. Admittedly, the defendant had twice the point total of the codefendant on his sentencing scoresheet, and, therefore, deserved a more severe sentence than the codefendant. The trial court, however, did not abuse its discretion in concluding that (a) downward departure to thirty years imprisonment for the defendant was required in order to make the sentences imposed in the case more equivalent — and that (b) a life sentence for the defendant, as the sentencing guidelines called for, was grossly unfair when compared to the nine-year sentence received by the codefendant. Sanders v. State, 510 So. 2d 296, 298 (Fla.1987). Although we agree that the first reason given by the trial court did not justify a sentencing guidelines departure, we are convinced beyond a reasonable doubt that the absence of this reason would not have affected the departure sentence; this is so because the second reason was obviously the decisive reason for the subject departure. Albritton v. State, 476 So. 2d 158, 160 (Fla.1985).1
Affirmed.
. Section 921.001(5), Florida Statutes, as amended by chapter 87-110, Laws of Florida, is inapplicable to this case because the crimes herein predated the statute. See McGriff v. State, 528 So. 2d 396, 398 (Fla. 3d DCA 1988), aff'd, 537 So. 2d 107, 109 (Fla.1989); State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA 1988).
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Citator
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Walker v. State, 604 So. 2d 475 (Fla. 1992)…n the interior of the store were not significant. See Jackson v. State, 436 So. 2d 1101 (Fla. 4th DCA 1983). Unlike in Faison, the victims were not dragged from room to room. They were not bound and blindfolded for half an hour as in Marsh v. State, 546 So. 2d 33 (Fla. 3d DCA 1989). They were not barricaded inside the bathroom like in Johnson v. State, 509 So. 2d 1237 (Fla. 4th DCA 1987), nor were they taken out of the store and put in the restroom located in the rear as in Ferguson. Further, the facts relie…
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Cathcart v. State, 643 So. 2d 702 (Fla. 4th DCA 1994)…n the interior of the store were not significant. See Jackson v. State, 436 So. 2d 1101 (Fla. 4th DCA 1988). Unlike in Faison, the victims were not dragged from room to room. They were not bound and blindfolded for half an hour as in Marsh v. State, 546 So. 2d 33 (Fla. 3d DCA 1989). They were not barricaded inside the bathroom like in Johnson v. State, 509 So. 2d 1237 (Fla. 4th DCA 1987), nor were they taken out of the store and put in the restroom located in the rear as in Ferguson. Further, the facts relie…
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Wilcher v. State, 647 So. 2d 1013 (Fla. 4th DCA 1994)…1987). In Walker, the court distinguished related cases in which kidnapping convictions have been upheld: Unlike in Faison, the victims were not dragged from room to room. They were not bound and blindfolded for half an hour as in Marsh v. State, 546 So. 2d 33 (Fla. 3d DCA 1989). They were not barricaded inside the bathroom like in Johnson v. State, 509 So. 2d 1237 (Fla. 4th DCA 1987), nor were they taken out of the store and put in the restroom located in the rear as in Ferguson. [Ferguson v. State, 533…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- State v. McGRIFF, 537 So. 2d 107 (Fla. 1989)
- State v. Sanborn, 533 So. 2d 1169 (Fla. 1988)
- Sanders v. State, 510 So. 2d 296 (Fla. 1987)
- State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA 1988)
- Sanborn v. State, 513 So. 2d 1380 (Fla. 3d DCA 1987)
- McGRIFF v. State, 528 So. 2d 396 (Fla. 3d DCA 1988)
- Carlton Williamson v. State, 516 So. 2d 290 (Fla. 5th DCA 1987)