TONY ELOZAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tony Elozar was convicted of robbery, kidnapping, grand theft, and firearm offenses after robbing a pawn shop. The appellate court reversed his kidnapping and grand theft convictions, finding that the confinement of victims in a safe during the robbery was incidental to the robbery itself and therefore did not constitute kidnapping, and that prosecuting both robbery and grand theft for the same property violated double jeopardy principles.
The kidnapping convictions must be reversed because the confinement was slight, inconsequential, and merely incidental to the robbery—it was not independent of the robbery and naturally accompanied it. The grand theft conviction must also be reversed on double jeopardy grounds because the same property that was the basis for the robbery convictions cannot also support a separate grand theft conviction.
[1] Confinement of victims during a robbery does not constitute kidnapping if the confinement is slight, inconsequential, and merely incidental to the robbery, inherent in it…
[2] Confinement that is likely to naturally accompany a felony, but not necessary to it, does not constitute kidnapping.
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Join FLexlaw to unlock all legal intelligence“kidnapping is the "confining, abducting, or imprisoning" of another person with intent to "commit or facilitate commission of any felony."”
Establishes the statutory definition of kidnapping that governs the court's analysis
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Join FLexlaw to unlock all legal intelligenceElozar was one of three culprits who robbed a pawn shop. During the robbery, the manager, two employees, and two customers were forced into an open sa…
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COBB, J.
Elozar was convicted of two counts of robbery, three counts of kidnapping, grand theft, and possession and improper exhibition of a firearm. He raises several points on appeal and we agree that the kidnapping convictions and the grand theft conviction must be reversed.
Elozar was one of three culprits who robbed a pawn shop. During the course of the robbery the manager, together with two other employees and two customers, were forced into an open safe and remained there until the robbers left. It was this confinement which gave rise to the kidnapping charges against Elozar. On appeal Elozar argues that kidnapping is the “confining, abducting, or imprisoning” of another person with intent to “commit or facilitate commission of any felony.” See § 787.01(1)(a), Fla. Stat. (2001). Faison v. State, 426 So. 2d 963 (Fla.1983) established that confinement to facilitate another crime (e.g., robbery) can be kidnapping if it (a) is not shght, inconsequential, and merely incidental to the other crime; (b) is not inherent in the nature of the other crime; and (c) has some significance independent of the other crime that makes the crime easier to commit or substantially lessens the risk of detection. In the subsequent case of Berry v. State, 668 So. 2d 967 (Fla.1996), the court construed the terminology of “slight, inconsequential, and merely incidental” to mean confinement that, while not necessary to the underlying felony, is “likely to naturally accompany it.” Simply moving victims at gunpoint from one room to another during the course of a robbery, such confinement ceasing when the robber leaves, does not constitute kidnapping. Berry, 668 So. 2d at 969. See also Formor v. State, 676 So. 2d 1013 (Fla. 5th DCA 1996)(no kidnapping where victims ordered onto floor, then into bathroom, at gunpoint). Cf. Hankerson v. State, 717 So. 2d 143 (Fla. 5th DCA 1998)(kidnapping conviction appropriate where victim was locked in back room).
In the instant case the employees and customers were forced into an open safe, and were free to come out when the armed robbers left the premises. These facts, pursuant to the applicable case law set out above, simply do not sustain kidnapping convictions.
In respect to Elozar’s conviction and sentence for grand theft of the same property, taken at the same time as that which served as the basis for his robbery convictions and sentences, the state concedes error based upon principles of double jeopardy. See Sirmons v. State, 634 So. 2d 153 (Fla.1994); Sessler v. State, 740 So. 2d 587 (Fla. 5th DCA 1999).
We find no merit in Elozar’s remaining points. Hence, we reverse his kidnapping convictions and sentences and his conviction and sentence for grand theft, and affirm his remaining convictions.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR RE-SENTENCING.
PLEUS and PALMER, JJ., concur.
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Elozar v. State, 872 So. 2d 934 (Fla. 5th DCA 2004)…SAWAYA, C.J. Tony Elozar appeals the sentences imposed upon remand from this court in Elozar v. State, 825 So. 2d 490 (Fla. 5th DCA 2002) (Elozar I). He raises two issues that have merit: 1) the trial court [*935] erred in imposing consecutive minimum mandatory sentences for two counts of robbery with a firearm; and 2) the sentences for both robbery with a firearm…
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Ward v. State, 898 So. 2d 1152 (Fla. 5th DCA 2005)…d robbery, U.S. currency and a radio/CD player, were the same. Additionally, the robbery and grand theft offenses were committed against Moore at the same location. We agree that it was improper to convict Ward of both offenses. See Elozar v. State, 825 So. 2d 490 (Fla. 5th DCA 2002) (holding that it was improper to convict the defendant of grand theft and robbery of the same property taken at the same time from the same person, as was conceded by the state); see also Oliver v. State, 842 So. 2d 259 (Fla. 5th…
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Gorday v. State, 907 So. 2d 640 (Fla. 3d DCA 2005)…rd from the victim’s purse was not an independent theft offense. See Ward v. State, 898 So. 2d 1152 (Fla. 5th DCA 2005)(double jeopardy prohibits grand theft and robbery conviction where property taken from victim at the same time); Elozar v. State, 825 So. 2d 490 (Fla. 5th DCA 2002)(grand theft and robbery convictions for same property taken at same time from same victim, improper). The State’s reliance on the Supreme Court’s decision in Hayes v. State, 803 So. 2d 695 (Fla.2001) for the proposition that the…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- Sirmons v. State, 634 So. 2d 153 (Fla. 1994)
- Germaine Berry v. State, 668 So. 2d 967 (Fla. 1996)
- Formor v. State, 676 So. 2d 1013 (Fla. 5th DCA 1996)
- Amin v. Fla. Dep't OF Corr., 740 So. 2d 587 (Fla. 5th DCA 1999)
- Hankerson v. State, 717 So. 2d 143 (Fla. 5th DCA 1998)
- Hosie Scott v. State, 717 So. 2d 143 (Fla. 5th DCA 1998)