FRANK RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Frank Rodriguez appeals his conviction for armed home invasion crimes including armed robbery, kidnapping, and aggravated assault. The appellate court affirmed the kidnapping convictions under the Faison test, reversed the firearm possession conviction as duplicative, and remanded for resentencing after finding the trial court's upward departure reasons invalid.
The court affirmed the armed kidnapping convictions because the victims' movement and confinement was not inconsequential and lessened the risk of detection. The court reversed the firearm possession conviction as impermissibly duplicative of the armed robbery, armed burglary, and aggravated assault convictions. The court remanded for resentencing because the trial court's reasons for upward departure—emotional trauma and excessive use of force—were invalid under Florida law.
[1] Movement or confinement of a victim is sufficient to support a kidnapping conviction if it is not slight, inconsequential, and merely incidental to another crime, not inh…
[2] A conviction for possession of a firearm during the commission of a felony is impermissibly duplicative when the defendant is simultaneously convicted and sentenced for o…
Previewing 2 of 4 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 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 three-part Faison test for determining whether confinement or movement in a kidnapping supports a separate kidnapping conviction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRodriguez and a co-defendant gained entry to a home by posing as police officers. Once inside, Rodriguez displayed a gun and demanded money. He gather…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse False Imprisonment With A Firearm cases and more on FLexlaw
ON MOTION FOR REHEARING AND/OR CLARIFICATION
GERSTEN, Judge.
On appellee State’s motion for rehearing and/or clarification we withdraw the opinion filed February 6, 1990, and substitute the following opinion in its stead. This is an appeal from a conviction and sentence for armed trespass of an occupied dwelling, robbery with a firearm, three counts of aggravated assault with a firearm, two counts of kidnapping with a firearm, false imprisonment with a firearm, and unlawful possession of a firearm while engaged in a criminal offense. We affirm in part, reverse in part, and remand.
Appellant, Frank Rodriguez, together with a co-defendant, gained access to the victims’ home by exhibiting badges and claiming to be police officers. Once inside the home, appellant produced a gun and demanded money. During the course of this home invasion, appellant gathered the victims from different rooms in the house. Appellant then brought the victims into the living room, holding them hostage at gunpoint. This allowed the intruders to observe all the victims at a central location while at the same time preventing the victims from summoning help.
Once together at that location, the victims were kicked and struck several times while the intruders demanded money. When the victims refused, two of the victims were taken around the house at gunpoint in search of money. Appellant (and the co-defendant) took jewelry, cash, and checks from the victims. After approximately fifteen to twenty minutes, fearing that a home burglar alarm was set off, appellant and the co-defendant fled.
Appellant contends that the trial court should have granted his motion for judgment of acquittal for the armed kidnapping charges because the movement or confinement of the victims was inconsequential. The State asserts that appellant was properly convicted of the armed kidnapping counts because the movement or confinement of the victims was not inconsequential.
Faison v. State, 426 So. 2d 963 (Fla.1983), provides a three part test to determine whether confinement or movement of a kidnapping victim is sufficient to support a conviction for kidnapping:
[If] 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.
Faison, 426 So. 2d at 965 (quoting State v. Buggs, 219 Kan. 203, 547 P. 2d 720, 731 (1976)).
The movement of the victims allowed appellant to observe the victims from a central location and prevented the victims from summoning assistance. Therefore, the victims’ movement and confinement lessened the risk of detection. Because we find the movement or confinement not slight or inconsequential, not inherent in the nature of the other crimes, and helped to avoid detection, we hold that appellant committed armed kidnapping under the test adopted in Faison.
Appellant also contends, and the State concedes, that he was improperly convicted and sentenced for the possession of a firearm during the commission of a felony, when he was simultaneously convicted and sentenced for armed burglary, armed robbery, and aggravated assault with a firearm arising out of the same incident. We agree.
We find the conviction for possession of a firearm during the commission of a felony impermissibly duplicates components of the other crimes. Based on the authority of Hall v. State, 517 So. 2d 678 (Fla.1988); Carawan v. State, 515 So. 2d 161 (Fla.1987); and Monsanto v. State, 530 So. 2d 952 (Fla. 3d DCA 1988), appellant’s conviction for possession of a firearm during the commission of a felony must be vacated.
Lastly, appellant contends that he should be resentenced because the trial court departed upward from the guidelines for invalid reasons. The State asserts that the trial court properly departed upward from the sentencing guidelines based on the use of excessive force. Appellant’s contention is well taken, and, we agree.
Appellant was sentenced to three concurrent terms of twenty-seven years for the armed robbery and armed kidnapping convictions. He was also sentenced to two concurrent terms of fifteen years for armed false imprisonment and unlawful possession of a firearm during the commission of a felony, and terms of five years for each of the counts of armed trespass and aggravated assault with a firearm. The trial court provided two written reasons for departing upward from the recommended sentencing guidelines: (1) the family’s emotional trauma; and, (2) appellant’s excessive use of force during the offenses. Appellant contends that both reasons are improper grounds for departure. Because emotional or psychological trauma is an inherent component of many violent crimes, emotional trauma can only be used as the basis for departure where the trauma arises from extraordinary circumstances which are clearly not inherent in the offense charged or where the victim has a discernible physical manifestation resulting from the trauma. See State v. Simpson, 554 So. 2d 506 (Fla.1989); State v. Rousseau, 509 So. 2d 281 (Fla.1987); Casteel v. State, 498 So. 2d 1249 (Fla.1986).
In Simpson, the Florida Supreme Court held that:
departure may not be based on emotional trauma arising from a robbery unless the emotional trauma is clearly and convincingly excessive or extraordinary....
Simpson, 554 So. 2d at 511. In the instant case, the record does not reflect that the victims suffered excessive or extraordinary trauma over and beyond that inherent in an armed robbery, armed kidnapping, and aggravated assault. Further, nothing in the record indicates that the victims experienced any physical manifestations resulting from the trauma sufficient to support a departure from the guidelines.
The second reason given by the trial court — appellant’s excessive use of force during the offenses, is unsupported by the record. Because we find both reasons for departure to have been invalid, we remand for resentencing within the guidelines. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987). In remanding this case for resentencing within the guidelines, we note that the sentencing scoresheet improperly included points for possession of a firearm during the commission of a felony and for victim injury. The removal of these points, however, does not change the applicable guidelines range.
Affirmed in part, reversed in part, and remanded for sentencing within the sentencing guidelines.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Perez v. State, 566 So. 2d 881 (Fla. 3d DCA 1990)…o. 2d 1074, 1076 (Fla.1984); Eisaman v. State, 440 So. 2d 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 ha…
-
Biggs v. State, 745 So. 2d 1051 (Fla. 3d DCA 1999)…hter and housekeeper was affirmed upon conclusion that their restraint was not slight, inconsequential or merely incidental to the other crime, but false imprisonment of mother vacated as her confinement was inherent in robbery); Rodriguez v. State, 558 So. 2d 211 (Fla. 3d DCA 1990)(during the course of 15-20 minute home invasion robbery, defendants gathered victims from different rooms in house, brought them into the living room, held them hostage at gunpoint, kicked and struck them several times while deman…
-
Kazakoff v. State, 642 So. 2d 596 (Fla. 2d DCA 1994)…he law. Fla.R.App.P. 9.331. We reject Kazakoffs argument that there was insufficient evidence to sustain his convictions for kidnapping and sexual battery and affirm on this point. See Staten v. State, 519 So. 2d 622 (Fla.1988); Rodriguez v. State, 558 So. 2d 211 (Fla. 3d DCA 1990). We conclude, however, that we must reverse Ka-zakoffs sentences and remand this case for the trial court to make findings as to certain criteria it failed to address in its order transferring Kazakoff for adult prosecution under…
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
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Casteel v. State, 498 So. 2d 1249 (Fla. 1986)
- State v. Vaughn R. Simpson, 554 So. 2d 506 (Fla. 1989)
- Boyd Alfred Monsanto v. State, 530 So. 2d 952 (Fla. 3d DCA 1988)