DONALD LEE BRUCE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1993-01-12
No. 91-2567
Before BARKDULL, NESBITT and JORGENSON, JJ.
612 So. 2d 632 Florida District Court of Appeal, Third District (1993) Caution
Cited by 6 cases

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Holding

The court held that some kidnapping convictions were not supported by sufficient evidence under the Faison test and must be reversed, while others were affirmed. The court also reversed the life sentence due to a confessed error.


Headnotes

[1] A kidnapping conviction may be reversed if the movement or confinement is slight, inconsequential, and merely incidental to another offense, or of a kind inherent in the…

[2] A trial court's denial of a mistrial motion may be deemed harmless error if the totality of the evidence overwhelmingly shows the defendant's guilt.

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Facts & Procedural History

The appellant was convicted of various offenses including attempted manslaughter, kidnapping, and robbery with a firearm following a K-Mart store robb…

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Opinion of the Court
BARKDULL, Judge.

BARKDULL, Judge.

Upon further consideration of our opinion filed November 10, 1992, on Rehearing, we hereby withdraw that opinion and substitute the following:

The appellant was convicted of attempted manslaughter with a firearm; five counts of kidnapping with a firearm; robbery with a firearm; three counts of aggravated assault; and burglary with a firearm, pursuant to a jury trial. He was sentenced to life on the robbery count, fifteen years on the manslaughter count to run concurrently with a three year minimum mandatory on the attempted manslaughter, armed robbery, kidnapping, and burglary of a structure. He was sentenced to five years on the aggravated assault charge and five years on the burglary charge. The sentence on the burglary count was to run consecutively to the five concurrent life sentences on the kidnapping counts but concurrently with the sentences on the aggravated assault counts. The kidnapping sentences were to run consecutively to the sentence on the armed robbery count.

This case arose out of the robbery of the K-Mart store at 27455 S. Dixie Highway on November 24, 1989. The assistant manager closed the store at 10:00 PM. After locking the days receipts in a safe at the back of the store, the assistant manager dismissed, the store security guard, Rick Day. Day left the store. He was standing outside talking to Lonnie Thompkins, the assistant manager, when he was forced back into the store by two men with a gun. The defendant was one of these men. Robert Hall, a friend of one of the employees, was also standing outside the store. They forced him into the store. When inside, the man with the gun gave it to the appellant. The two men forced Thompkins, Day, Hall, and Lynn Faith, an employee, to the back of the store where they met Karen Downs, another employee. They forced her along with all of these other people into an office where the appellant forced Thompkins to get a key to the cash room, and to open the safe, by threatening to kill him. Thomp-kins opened the safe and gave the two men the money. Thereafter the appellant shot him in the arm. The two men left the back of the store with the money. As they walked down the center aisle they were arrested by the police who were called by another security officer, Eddie Flornoy, who had seen them force their way into K-Mart and was suspicious of their appearance and activities. Both men were charged as previously mentioned. Williams, the codefendant was acquitted. At trial, during cross examination of the appellant, the state asked the appellant if he knew whether his codefendant had ever been convicted of a felony. Appellant objected, which was sustained and a curative instruction was given. Appellant moved for a mistrial which was denied.

On appeal the appellant contends the trial court erred in denying his motion for mistrial as the question was an improper attempt to bolster the credibility of a state’s witness by contrasting his lack of a criminal record to the appellant’s prior record, thereby undermining the appellant’s defense and that the evidence was insufficient to support the kidnapping counts, on the authority of the recent case of Walker v. State, 604 So. 2d 475 (Fla.1992).

He also contends the trial court erred in departing from the guideline sentence of life imprisonment without stating a valid reason for departure, to which the state confesses error. Any error in denying the motion for mistrial is purely harmless when the totality of the evidence showed the appellant was a willing participant in the crime and had committed the crime. § 924.33, Florida Statute (1991).

In reexamining the kidnapping convictions in light of Walker, we adhere to the finding that under the facts of this case that Walker is not controlling. However, we have reconsidered the kidnapping convictions in light of the three-pronged test set out in Faison v. State, 426 So. 2d 963 (Fla. 1983)

and find that the convictions for the kidnapping of Thompkins, Faith and Downs fail to meet the test of Faison and must be reversed. The kidnapping convictions of Day and Hall, however, do not appear to be of a kind inherent in the nature of the robbery offense, because they were forced into the store. This act would not have been necessary to effect a robbery of the store. Their kidnappings meet the test of Faison and are affirmed. Therefore, the kidnapping convictions of Thompkins, Faith and Downs are reversed. Because of the confession of error as to the life sentence, it is set aside and the cause is remanded for resentencing. In all other respects the trial court is affirmed.

Affirmed in part, reversed in part, remanded with directions.

. According to Faison, for a kidnapping conviction to stand, the resulting movement or confinement (a) must not be slight, inconsequential, and merely incidental to the other offense; (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.


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Citator

Cited By

  • Biggs v. State, 745 So. 2d 1051 (Fla. 3d DCA 1999)
    …remove tape from video camera in office, several other employees present were told to lie on floor, and defendants then ordered victims to go down aisle approximately 180 feet to back door before firing two shots and leaving scene); Bruce v. State, 612 So. 2d 632 (Fla. 3d DCA 1993)(security guard standing outside closed K-Mart store with assistant manager and third man were forced back into store by two men with a gun; when inside, defendants forced these three men and another employee to back of store where…
  • Jones v. State, 652 So. 2d 967 (Fla. 3d DCA 1995)
    …uittal of Counts V, VI and VII, for kidnapping Cory and the two customers. The state properly concedes that defendant’s movement of Cory to the back office where he directed her to open the safe is indistinguishable from the facts in Bruce v. State, 612 So. 2d 632 (Fla. 3d DCA 1993). In Bruce, this court reversed a kidnapping conviction holding that the movement of the victim to the store’s back office where defendant ordered him to open the safe failed to meet the three-part test set forth in Faison v. State…
  • Frederick v. State, 931 So. 2d 967 (Fla. 3d DCA 2006)
    …e-cause the movement and confinement were slight, inconsequential, and merely incidental to the robberies [the defendant] cannot [*970] be convicted of kidnapping.”). See also Elozar v. State, 825 So. 2d 490, 491 (Fla. 5th DCA 2002); Bruce v. State, 612 So. 2d 632, 634 (Fla. 3d DCA 1993); McCutcheon v. State, 711 So. 2d 1286, 1289 (Fla. 4th DCA 1998); Formor v. State, 676 So. 2d 1013, 1014 (Fla. 5th DCA 1996); Wilcher v. State, 647 So. 2d 1013 (Fla. 4th DCA 1994); Friend v. State, 385 So. 2d 696, 697 (Fla. 1s…

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