ALBERTO I. HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the Faison test does not apply to kidnapping convictions under subparagraph 787.01(1)(a)3., Fla. Stat. (2000), even in a first-degree felony murder case.
Alberto I. Hernandez was convicted of first-degree felony murder and kidnapping. He appealed, arguing his kidnapping conviction should be reversed.…
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PER CURIAM.
Alberto I. Hernandez appeals his convictions for first degree felony murder and kidnapping.
Defendant-appellant Hernandez argues that his motion for judgment of acquittal should have been granted on the kidnapping count. He contends that the kidnapping conviction must be reversed under Faison v. State, 426 So. 2d 963 (Fla.1983).
We reject the defendant’s argument because the defendant was convicted of kidnapping under subparagraph 787.01(l)(a)3., Fla. Stat. (2000). That portion of the kidnapping statute applies where a defendant is found guilty of “forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to ... 3. Inflict bodily harm upon or terrorize the victim or another person.” Id. The Florida Supreme Court and this court have held that the Faison test does not apply to a conviction under the just-quoted subparagraph 3. See Boyd v. State, 910 So. 2d 167, 184 (Fla.2005); Bedford v. State, 589 So. 2d 245, 251 (Fla.1991); Biggs v. State, 745 So. 2d 1051, 1052 (Fla. 3d DCA 1999).
The defendant acknowledges the existence of these precedents, but argues that the analysis should be different in a first degree felony murder case. We reject this argument also. The Bedford decision, like the present case, involved a count of first degree felony murder where, as here, the underlying felony was kidnapping. 589 So. 2d at 251.
Affirmed.’
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Hernandez v. State, 990 So. 2d 1116 (Fla. 3d DCA 2008)…and meritless. Hernandez was convicted on June 4, 2003, of first-degree murder and kidnapping, and was sentenced to two concurrent life sentences. His convictions and sentences were affirmed by this Court on September 21, 2005. Hernandez v. State, 913 So. 2d 36 (Fla. 3d DCA 2005). Florida Rule of Appellate Procedure 9.141(c)(4)(B) provides: A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on d…
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Perry v. State, 57 So. 3d 910 (Fla. 1st DCA 2011)…State, 426 So. 2d 963, 965-66 (Fla.1983). . See Bedford v. State, 589 So. 2d 245, 251 (Fla.1991), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992); State v. Lumarque, 990 So. 2d 1241, 1242 (Fla. 3d DCA 2008); Hernandez v. State, 913 So. 2d 36 (Fla. 3d DCA 2005), rev. denied, 941 So. 2d 368 (Fla.2006); Sutton v. State, 834 So. 2d 332, 334-35 (Fla. 5th DCA 2003); Biggs v. State, 745 So. 2d 1051, 1052 (Fla. 3d DCA 1999); Waddell v. State, 696 So. 2d 1229 (Fla. 3d DCA 1997), rev. denied, 707…
Authorities Cited
- Faison v. State, 426 So. 2d 963 (Fla. 1983)
- Lucious Boyd v. State, 910 So. 2d 167 (Fla. 1998)
- Bedford v. State, 589 So. 2d 245 (Fla. 1991)
- Biggs v. State, 745 So. 2d 1051 (Fla. 3d DCA 1999)