CHARLES EDWARD POPE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Edward Pope appealed his conviction and sentence for robbery and kidnapping. The court affirmed his conviction but reversed his sentence, finding that the trial court improperly imposed both consecutive sentences and habitual offender enhancement for crimes arising from a single criminal episode.
The court affirmed the kidnapping conviction, finding the movement was not slight and was independent of the robbery. However, the court reversed the sentence, holding that when two convictions arise from a single criminal episode, the trial court cannot impose both consecutive sentences and habitual offender enhancement; it must choose one or the other.
[1] A defendant may not raise an issue on appeal if the trial court was not presented with the issue and did not rule on it.
[2] Movement or confinement of a victim constitutes kidnapping independent of robbery if the movement or confinement is not slight, is not inherent in the crime of robbery, a…
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Join FLexlaw to unlock all legal intelligence“Under the test of Faison v. State, 426 So.2d 963, 965 (Fla.1983), this act was a kidnapping independent of the crime of robbery. Here, the movement or confinement was not slight; it was not inherent in the crime of robbery and but for the movement, Pope would not have been able to complete the crime of robbery by taking Chuk's food stamps.”
Establishes the legal standard for when movement constitutes an independent kidnapping rather than incidental to robbery
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Join FLexlaw to unlock all legal intelligencePope robbed Richard Chuk using a knife, taking money from him. Pope then moved Chuk approximately one block to his truck, where he took Chuk's food st…
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THOMPSON, Judge.
Charles Edward Pope (“Pope”) appeals his conviction and sentence for robbery1 and kidnapping.2 We affirm his conviction, but reverse his sentence.
Pope argues the trial court erred in denying his motion for judgment of acquittal on the offense of kidnapping. Pope’s trial counsel did not preserve this putative error for appeal. There was an objection, but not on the issue that has been argued before this court. By failing to present the argument to the trial court for review and ruling, Pope is precluded from raising the issue on appeal. Reed v. State, 603 So. 2d 69 (Fla. 4th DCA 1992). Furthermore, the facts support Pope’s conviction for kidnapping.
The facts are the following. Pope committed a robbery by using a knife to take money from his victim, Richard Chuk. Pope then took Chuk from the point of the robbery approximately one block to his truck. At the truck, Pope took Chuk’s food stamps. Under the test of Faison v. State, 426 So. 2d 963, 965 (Fla.1983), this act was a kidnapping independent of the crime of robbery. Here, the movement or confinement was not slight; it was not inherent in the crime of robbery and but for the movement, Pope would not have been able to complete the crime of robbery by taking Chuk’s food stamps. Cf Baker v. State, 639 So. 2d 103 (Fla. 5th DCA 1994) (where movement and confinement of burglary victim was limited to the interior of an automobile, the activity was slight and merely incidental to the crime of burglary with an assault or battery). The court properly denied his request for judgment of acquittal.
We do, however, reverse Pope’s sentence and remand the case for resentencing. After his conviction, Pope was designated a habitual felony offender3 and he was sentenced to consecutive sentences. Because his two convictions arose out of a single criminal episode, Pope argues he can be sentenced consecutively within the sentencing guidelines or he can be sentenced as a habitual offender with no consecutive sentence. We agree. We reverse the consecutive habitual offender sentences and remand for resentencing. Hale v. State, 630 So. 2d 521 (Fla.1993), cert. denied, — U.S. —, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). At resentencing, the trial court can elect to sentence Pope to a consecutive sentence or enhance his sentence as a habitual offender, but it cannot do both. Anderson v. State, 637 So. 2d 971 (Fla. 5th DCA 1994).
AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.
DAUKSCH and GRIFFIN, JJ., concur. . § 812.13(2)(a), Fla.Stat. (1991).
. § 787.01(l)(a)(2), Fla.Stat. (1991).
.§ 775.084, Fla.Stat. (1991).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kent v. State, 702 So. 2d 265 (Fla. 5th DCA 1997)…bar at knife point was sufficient to support conviction for kidnapping); Ferguson (evidence that defendant had forced restaurant employees out of the restaurant and into back restroom was sufficient to support kidnapping conviction); Pope v. State, 646 So. 2d 827 (Fla. 5th DCA 1994) (evidence sufficient to support kidnapping conviction where defendant committed robbery by taking money from victim, then took victim one block away to his truck, where defendant took victim’s food stamps). The state also argues…
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Weber v. State, 776 So. 2d 1001 (Fla. 5th DCA 2001)…to the trial court, hence it has not been preserved for review. The state cites to various cases in support of this proposition. See, e.g., Occhicone v. State, 570 So. 2d 902 (Fla.1990); Tillman v. State, 471 So. 2d 32 (Fla.1985); and Pope v. State, 646 So. 2d 827 (Fla. 5th DCA 1994). This appears to be true. The argument Weber advanced to the trial court was that the cement slab, from which the fan was stolen, did not constitute an “attached porch” as contemplated by the definition of a dwelling set forth in…
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Massey v. State, 660 So. 2d 760 (Fla. 5th DCA 1995)…st either be resen-tenced to concurrent habitual felony offender sentences or to consecutive non-habitual felony offender sentences which are within the recommended guideline range or are supported by a valid reason for departure. See Pope v. State, 646 So. 2d 827 (Fla. 5th DCA 1994). REVERSED. HARRIS and GRIFFIN, JJ., concur. . Witt v. State, 387 So. 2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).…
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
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- Anderson v. State, 637 So. 2d 971 (Fla. 5th DCA 1994)
- Reed v. State, 603 So. 2d 69 (Fla. 4th DCA 1992)
- Baker v. State, 639 So. 2d 103 (Fla. 5th DCA 1994)