THE STATE OF FLORIDA, APPELLANT,
v.
RAYMOND LUMARQUE, APPELLEE

Fla. 3d DCA | 2008-09-24
No. 3D07-2848
Before WELLS, CORTINAS, and SALTER, JJ.
990 So. 2d 1241 Florida District Court of Appeal, Third District (2008) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The State appealed a trial court's dismissal of kidnapping charges against Raymond Lumarque. The Florida Third District Court of Appeal reversed, holding that the evidence was sufficient to support kidnapping charges under the statute's provision covering kidnapping with intent to inflict bodily harm or terrorize the victim, distinguishing the applicable law from cases involving kidnapping to facilitate other felonies.


Holding

The court reversed the trial court's dismissal, holding that there was sufficient evidence to withstand a motion to dismiss the kidnapping charge under section 787.01(1)(a)(3). The court distinguished Faison v. State, which applies to kidnapping with intent to commit a felony, from the applicable statute provision concerning kidnapping with intent to terrorize or inflict bodily harm.


Headnotes

[1] Kidnapping charges under Florida Statute section 787.01(1)(a)(3), which requires intent to inflict bodily harm or terrorize the victim, are not subject to the rule that c…

[2] Evidence of dragging a victim by the neck, strangling them, and smothering them with a pillow is sufficient to establish the confinement, abduction, or imprisonment neces…

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Key Quotes

“Faison may correctly be applied to section 787.01(l)(a)(2), which involves kidnapping with the intent to commit a felony, but it is not applicable to a kidnapping charge based upon section 787.01(l)(a)(3), which addresses kidnapping with the intent to "[i]nflict bodily harm upon or to terrorize the victim."”

Establishes the critical distinction between two subsections of the kidnapping statute and clarifies when the Faison precedent applies.

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Facts & Procedural History

Lumarque picked up his children from his former wife's home but returned approximately ten minutes later. When she allowed him entry, he was holding b…

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Topics

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Opinion of the Court
CORTIÑAS, J.

CORTIÑAS, J.

Raymond Lumarque (“Lumarque”) was charged by information with kidnapping in violation of section 787.01(l)(a)(2) and, alternatively, section 787.01(l)(a)(3) of the Florida Statutes. The information specifically alleged that Lumarque did “forcibly, secretly, or by threat, confine, abduct or imprison another person, to wit: C.L. (an adult) against that person’s will, with the intent to commit or facilitate the commission of any felony, to wit: sexual battery and/or attempted first degree murder and/or inflict bodily harm upon or to terrorize the victim ... in violation of s. 787.01(2), Fla. Stat....” The trial court granted Lumarque’s motion to dismiss the kidnapping charge on the basis that Lum-arque’s behavior did not legally constitute kidnapping.

We reverse because there was sufficient evidence to withstand a motion to dismiss the charge of kidnapping with the intent to “[i]nflict bodily harm upon or to terrorize the victim” under section 787.01(l)(a)(3) of the Florida Statutes.

The testimony of the defendant’s former wife indicated that Lumarque picked up their children from her house to bring them to his home.

However, approximately ten minutes later, he returned to the former wife’s home and she permitted him to enter. Upon his entry, she noticed that he was holding a pair of black gloves. She immediately ran for a telephone, which Lumarque knocked from her hands. The former wife further testified that Lum-arque grabbed her by the neck and dragged her through the house to her bedroom, where he strangled her, smothered her with a pillow, and forced her to perform oral sex. In its order dismissing the kidnapping charge, the trial court relied upon Faison v. State, 426 So. 2d 963, 966 (Fla.1983) (“ ‘[Cjonfining, abducting, or imprisoning another person ... with intent to commit or facilitate commission of any felony’ does not include movement or confinement that is inconsequential or inherent in the nature of the felony.”) (quoting Harkins v. State, 380 So. 2d 524, 528 (Fla. 5th DCA 1980)).

However, the trial court’s reliance upon Faison was misplaced. Faison may correctly be applied to section 787.01(l)(a)(2), which involves kidnapping with the intent to commit a felony, but it is not applicable to a kidnapping charge based upon section 787.01(l)(a)(3), which addresses kidnapping with the intent to “[i]nfliet bodily harm upon or to terrorize the victim.” See Biggs v. State, 745 So. 2d 1051, 1052 (Fla. 3d DCA 1999); Waddell v. State, 696 So. 2d 1229, 1229-30 (Fla. 3d DCA 1997).

We find that there was sufficient evidence to withstand a motion to dismiss the charge of kidnapping with the intent to “[ijnflict bodily harm upon or to terrorize the victim.” See Lee v. State, 770 So. 2d 231 (Fla. 3d DCA 2000) (finding that dragging the victim by her throat from one room to another during the defendant’s attack upon her was sufficient to demonstrate the necessary confinement, abduction, or imprisonment required to establish any form of kidnapping, including kidnapping under the “terrorizing” provision found in section 787.01(l)(a)(3)). As such, we reverse the trial court’s dismissal of the kidnapping charge.

Reversed and remanded.


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Citator

Cited By

  • Conner v. State, 19 So. 3d 1117 (Fla. 2d DCA 2009)
    …o. 2d 963 (Fla.1983), which held that the latter subsection does not apply to unlawful confinements or movements that were merely incidental to or inherent in the nature of the underlying felony, has no application here. See also State v. Lumarque, 990 So. 2d 1241, 1242 (Fla. 3d DCA 2008) (“Faison may correctly be applied to section 787.01(l)(a)(2), ... but it is not applicable to a kidnapping charge based upon section 787.01(l)(a)(3)-”); Sutton v. State, 834 So. 2d 332, 334 (Fla. 5th DCA 2003) (“The standard…
  • Perry v. State, 57 So. 3d 910 (Fla. 1st DCA 2011)
    …pon or to terrorize the victim or another person. . Faison v. 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 v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010)

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