ONELIO G. GARCIA, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Garcia appealed his convictions for kidnapping, armed burglary with assault, armed robbery, and aggravated battery, as well as his sentence as a habitual violent felony offender. The court affirmed all convictions and the sentence, rejecting Garcia's arguments regarding insufficient evidence, double jeopardy, and the constitutionality of the habitual violent felony offender statute.
The court affirmed all convictions and the sentence. The state presented sufficient evidence for each charge, the offenses did not contain identical elements, and the habitual violent felony offender statute is constitutional and applicable to first-degree felonies punishable by life imprisonment.
[1] Evidence of confinement distinct from other offenses is sufficient to support a kidnapping conviction.
[2] Sufficient evidence establishing the taking element supports an armed robbery conviction.
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Join FLexlaw to unlock all legal intelligence“The facts in this case were sufficient to satisfy the legal test laid down in Faison v. State, 426 So.2d 963 (Fla.1983).”
Establishes that the trial court properly denied Garcia's motion for judgment of acquittal on the kidnapping charge because sufficient evidence of distinct confinement was presented.
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Join FLexlaw to unlock all legal intelligenceGarcia committed a brief criminal episode in which he forced a victim back into her car at knifepoint. During this incident, he committed kidnapping, …
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[*807] ZEHMER, Judge.
Garcia appeals his convictions of kidnapping, armed burglary with assault, armed robbery, and aggravated battery, and also appeals his sentence as a habitual violent felony offender. We affirm all issues for the following reasons.
We reject Garcia’s argument that it was error for the trial court to deny his motion for judgment of acquittal on the kidnapping charge based on grounds that the state failed to prove facts showing confinement of the victim that were distinct from the facts supporting the other three offenses committed during the brief episode in which the victim was forced back into the car she was leaving. The facts in this case were sufficient to satisfy the legal test laid down in Faison v. State, 426 So. 2d 963 (Fla.1983).
We likewise reject Garcia’s argument that the court erred in denying his motion for judgment of acquittal on the armed robbery charge asserting as grounds that the state failed to present sufficient evidence to establish the taking element and affirm this issue on the authority of Johnson v. State, 432 So. 2d 758 (Fla. 1st DCA 1983).
Thirdly, we find no merit in Garcia’s argument that his convictions for both aggravated battery and burglary with intent to commit an assault while armed, being based on the single act of pushing the victim into her car at knifepoint, are in violation of the statutory prohibition against multiple convictions for offenses having identical elements found in section 775.021, Florida Statutes (1989), and in violation of the state constitutional prohibition against double jeopardy. Contrary to his contention, the several offenses of which Garcia was convicted did not contain identical elements. The state charged him with armed burglary with intent to commit an assault, not with intent to commit a battery, as it was authorized to do by section 810.02, Florida Statutes (1989). The state charged aggravated battery with a knife as a separate offense. The elements of assault [§ 784.011, Fla.Stat. (1989)] and the elements of battery [§ 784.03, Fla.Stat. (1989) ] are distinctly different, and assault is not a necessarily lesser included offense subsumed in the offense of battery. See Rodriguez v. State, 263 So. 2d 267 (Fla. 3d DCA), cert. denied, 267 So. 2d 330 (Fla.1972). Cf. Nelson v. State, 157 So. 2d 96 (Fla. 3d DCA 1963), cert. denied, 165 So. 2d 178 (Fla.1964), disapproved in State v. White, 324 So. 2d 630 (Fla.1975). The facts in this case support Garcia’s convictions of both offenses.
Garcia’s challenges to the constitutional validity of the habitual violent felony offender statute, section 775.084, Florida Statutes (1989), are devoid of merit for the reasons expressed in Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990), rev. denied, 581 So. 2d 166 (Fla.1991), and Perkins v. State, 583 So. 2d 1103 (Fla. 1st DCA 1991). We also reject his argument that the offenses of kidnapping, armed burglary, and armed robbery, being first degree felonies punishable by life imprisonment, are not punishable under the amended habitual felony offender statute because this court has ruled to the contrary in Burdick v. State, 584 So. 2d 1035 (Fla. 1st DCA 1991).
AFFIRMED.
SHIVERS and KAHN, JJ., concur.
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Brown v. State, 761 So. 2d 1135 (Fla. 1st DCA 2000)…sed on the same conduct); Maultsby v. State, 688 So. 2d 1010 (Fla. 3d DCA 1997) (upholding separate convictions for robbery and for battery based on the same conduct, since robbery can be accomplished by an assault without battery); Garcia v. State, 594 So. 2d 806 (Fla. 1st DCA 1992) (upholding separate convictions for aggravated battery and for burglary with intent to commit assault based on the same conduct); Hill v. State, 588 So. 2d 46 (Fla. 1st DCA 1991) (upholding separate convictions for aggravated ass…
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Fuller v. State, 605 So. 2d 1307 (Fla. 1st DCA 1992)…kins v. State, 583 So. 2d 1103 (Fla. 1st DCA 1991), petition for review filed, No. 78,613 (Fla. Sept. 17, 1991); Merriweather v. State, 593 So. 2d 1218 (Fla. 1st DCA 1992), petition for review filed, No. 79,572 (Fla. Mar. 25, 1992); Garcia v. State, 594 So. 2d 806 (Fla. 1st DCA 1992); Anderson v. State, 592 So. 2d 1119 (Fla. 1st DCA 1991). And see Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA), review denied, 576 So. 2d 284 (Fla.1990); Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990), review denied, 581…
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Farmer v. State, 709 So. 2d 592 (Fla. 1st DCA 1998)…There was no error in our review and no change in law to warrant revisiting this claim. Each of these offenses requires a different element of proof which the other does not, so that there is no double jeopardy violation. See, e.g., Garcia v. State, 594 So. 2d 806 (Fla. 1st DCA 1992). Affirmed in part; reversed and remanded in part. MICKLE and DAVIS, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- State v. White, 324 So. 2d 630 (Fla. 1975)
- Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990)
- Isaiah Perkins v. State, 583 So. 2d 1103 (Fla. 1st DCA 1991)
- Pearson & Maluso, M.D., P.A. v. Bott, 584 So. 2d 1035 (Fla. 5th DCA 1991)
- Kelner v. Suritz, 165 So. 2d 178 (Fla. 1964)
- Nelson v. State, 157 So. 2d 96 (Fla. 3d DCA 1963)
- Johnson v. State, 432 So. 2d 758 (Fla. 1st DCA 1983)
- Adams v. State, 263 So. 2d 267 (Fla. 3d DCA 1972)
- Vance v. Fla. Reduction Corp., 267 So. 2d 330 (Fla. 1972)