JONATHON B. HUMPHRIES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Jonathon Humphries appeals his convictions for attempted kidnapping in connection with an armed robbery attempt. The court reverses the kidnapping convictions, finding that the confinement of victims was merely incidental to the robbery under the Faison test, and remands for resentencing on the remaining convictions.
The court reverses the attempted kidnapping convictions because the attempts to kidnap were merely incidental to the principal plan to rob the store. The movement and confinement of the victims did not satisfy the Faison test requiring that the confinement must not be incidental to the other crime and must have independent significance.
[1] Kidnapping charges will be reversed if the movement or confinement of the victim is slight, inconsequential, and merely incidental to another crime.
[2] Kidnapping charges will be reversed if the movement or confinement of the victim is of the kind inherent in the nature of another crime.
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“if a person is charged with kidnapping incidental to another crime, such as robbery or rape, then it must be proved that the movement or confinement of the victim (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.”
States the Faison test that governs incidental kidnapping charges and the legal standard applied to reverse appellant's convictions
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Join FLexlaw to unlock all legal intelligenceAppellant arrived at a store armed with a firearm and brought duct tape, apparently intending to rob it. He ordered the victims into a storage area an…
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DAUKSCH, Judge.
This is an appeal from a judgment and sentence in a kidnapping and robbery case. Appellant was convicted of Count I — Attempted Robbery With a Firearm;
Count II — Shooting at, within or into a Building;
Count III — Attempted First Degree Murder with a Firearm;
Count IV — Carrying a Concealed Firearm;
Counts V & VI — Attempted Kidnapping with a Weapon.
He complains that his conviction for attempted kidnapping should be reversed because the facts do not satisfy the Faison1 test. That case requires that if a person is charged with kidnapping incidental to another crime, such as robbery or rape, then it must be proved that the movement or confinement of the victim
(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.
Id. at 965.
Here, appellant was armed and brought duct tape to a store to rob it. He ordered the victims into a storage area and began to secure the victims with the tape. They resisted and appellant was thwarted in his robbery attempt, as well as his alleged kidnapping attempt. He did succeed in shooting one of the victims in the face.
We reverse the convictions and sentences for kidnapping because the attempts to kidnap were merely incidental to the principal plan of appellant to rob the store. See also Walker v. State, 604 So. 2d 475 (Fla.1992); Kirtsey v. State, 511 So. 2d 744 (Fla. 5th DCA 1987). Because appellant’s written judgment and sentence do not conform to the oral sentences, the trial judge on remand should properly resentence appellant.
AFFIRMED in part; REVERSED in part; SENTENCES VACATED; REMANDED FOR RESENTENCING.
GOSHORN and THOMPSON, JJ., concur. . Faison v. State, 426 So. 2d 963 (Fla.1983).
ON MOTION FOR REHEARING
GOSHORN, Judge.
Appellant asserts on rehearing that the supreme court’s recent decision in State v. Gray, 654 So. 2d 552 (Fla.1995), holding that the State of Florida no longer recognizes the crime of attempted felony murder, is applicable to his appeal. See also State v. Grinage, 656 So. 2d 457 (Fla.1995) (reiterating that the holding in Gray “is applicable to all cases pending on direct review or not yet final at the time of the Gray opinion.”). We agree and remand for a new trial on Count III.
In Count III, Appellant was charged with the attempted murder of the victim either by premeditation or during the commission of a felony. The jury simply found Appellant guilty of attempted first degree murder “as charged.” Hence, it is unclear whether the jury found Appellant guilty of a premeditated act or whether it resolved the charge on the assertion of attempted felony murder. Because it is impossible to determine which of the two theories the jury accepted, remand for retrial on the charge of attempted premeditated murder is required. See United States v. Garcia, 938 F. 2d 12 (2d Cir.1991) (holding that where there was insufficient evidence to support one of two alternative theories of prosecution and there was no way to determine upon which theory the jury had convicted the defendant, retrial on the remaining theory was not barred by the double jeopardy clause because there was no implication of an acquittal on the remaining theory and the ends of justice would be served by retrial).
COUNT III REVERSED and REMANDED.
THOMPSON, J., concurs.
DAUKSCH, J., dissents with opinion.
DAUKSCH, Judge,
dissenting.
I respectfully dissent. There was sufficient evidence to support the charge of attempted premeditated murder. Therefore I would affirm his conviction.
GOSHORN, Judge.
EN BANC
The court sua sponte has elected to consider en banc the appellee’s motion for rehearing of our opinion filed December 1, 1995, and deny the motion.
PETERSON, C.J., and DAUKSCH, COBB, W. SHARP, HARRIS, GRIFFIN, THOMPSON and ANTOON, JJ., concur.
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Mungin v. State, 689 So. 2d 1026 (Fla. 1995)…ed, we must reverse the conviction. However, because it is impossible to determine which • of the two theories of attempted murder the jury accepted, remand for retrial on the charge of attempted second degree murder is required. Humphries v. State, 676 So. 2d 1 (Fla. 5th DCA 1995), citing United States v. Garcia, 938 F. 2d 12 (2d Cir.1991). Lamb, 668 So. 2d at 667. And most recently, the Fifth District in an en banc decision vacated a defendant’s attempted first-degree murder conviction and remanded for…1 / 2
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Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001)…that the convictions are supported by testimony that one of the perpetrators suggested that the victims be tied up. However, although actually tying up a victim can be sufficient to support a kidnapping conviction, Berry; compare Humphries v. State, 676 So. 2d 1 (Fla. 5th DCA 1995)(no kidnapping when defendant thwarted while duct-taping victims), the testimony of such a suggestion, standing alone, is not sufficient evidence to support the kidnapping conviction. Additionally, there is no preservation proble…
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Mosely v. State, 682 So. 2d 605 (Fla. 1st DCA 1996)…e that does not exist, the error is fundamental and is per se reversible, and the ease must be remanded for retrial. See, e.g., Lamb v. State, 668 So. 2d 666 (Fla. 2d DCA 1996); Tape v. State, 661 So. 2d 1287 (Fla. 4th DCA 1995); Humphries v. State, 676 So. 2d 1 (Fla. 5th DCA 1995). Because our holding resolves the matter in appellant’s favor, by granting him a new trial, we need not address his other claim, which was based upon Coney v. State, 653 So. 2d 1009 (Fla.) cert. denied, — U.S. —, 116 S.Ct. 315,…
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
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- Walker v. State, 604 So. 2d 475 (Fla. 1992)
- State v. Grinage, 656 So. 2d 457 (Fla. 1995)
- Kirtsey v. State, 511 So. 2d 744 (Fla. 5th DCA 1987)
- United States v. Garcia, 938 F.2d 12 (2d Cir. 1991)