Faison v. State

• Citation: 426 So.2d 963
• Decision Date: 10 February 1983
• Docket Number: 60782,Nos. 60792,s. 60792
• Parties: Matthew FAISON, Petitioner, v. STATE of Florida, Respondent. STATE of Florida, Petitioner, v. Matthew FAISON, Respondent.
• Court: Florida Supreme Court

Page 963

426 So.2d 963

Matthew FAISON, Petitioner, v. STATE of Florida, Respondent.

STATE of Florida, Petitioner, v. Matthew FAISON, Respondent.

Nos. 60792, 60782.

Supreme Court of Florida.

Feb. 10, 1983.

Marsha L. Lyons, Sp. Asst. Public Defender, Coral Gables, for Faison.

Jim Smith, Atty. Gen., and Anthony C. Musto and Calianne P. Lantz, Asst. Attys. Gen., Miami, for the State.

McDONALD, Justice.

This case is before us on cross-petitions to review a decision of a district court, reported at 399 So.2d 19 (Fla. 3d DCA 1981). Because that decision conflicts with State v. Hegstrom, 401 So.2d 1343 (Fla.1981), and Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), we have jurisdiction. ¹

Faison was convicted of five offenses committed during the course of separate sexual attacks on two women. After discovering that the only employee present in a small contractor's office was the receptionist, Faison entered the office and attacked the young woman. To do so, he dragged her from her desk in front of a large window to the rear of the office where he sexually assaulted her. He then forced her into a nearby restroom and raped her again.

About ten minutes later, the receptionist spotted Faison across the street, and her employer attempted to stop him. Faison escaped into a residential area and broke into the home of another young woman. He attacked her and violently dragged her from the kitchen down a hallway into the bedroom. The two continued to fight until the woman was nearly unconscious; Faison then sexually assaulted her.

The jury convicted Faison of two counts of kidnapping, two counts of sexual battery, and one count of first-degree burglary. ² The court sentenced him to three consecutive 99-year prison terms for the kidnappings and burglary and suspended the sentence on the two sexual battery convictions. The trial judge, citing Faison's nine prior felony convictions, found him to be a serious threat and a danger to society and entered an order retaining jurisdiction over Faison for the first third of his sentence. ³ The Third District Court of Appeal upheld the convictions and sentences for both kidnappings, ⁴ but reversed the conviction for the sexual battery committed during the burglary of the home on the authority of State v. Pinder, 375 So.2d 836 (Fla.1979). Both the state and Faison sought review in this Court.

The state questions the district court's decision to vacate the sexual battery conviction. Faison was convicted of both first-degree burglary, that is, burglary of the victim's home and making an assault upon her, and the sexual battery which constituted the assault in the burglary charge. Relying on Pinder, the district court found the sexual battery to be a necessary element of the first-degree burglary and vacated the conviction.

Subsequent to Pinder, we decided State v. Hegstrom, 401 So.2d 1343 (Fla.1981). In Hegstrom this Court decided that it is permissible to convict a defendant of both felony murder and the underlying felony but that only one sentence, for the greater offense, is proper. In the instant case the sexual battery was charged as the underlying assault in the first-degree burglary count. Faison was found guilty of both the burglary and the sexual battery, but was sentenced only for the burglary. Distinct crimes were committed, and the conviction for the sexual battery was proper.

Faison seeks disapproval of his kidnapping convictions on the grounds that the victims' detention and confinement were merely incidental to and were not materially different from the detention necessarily involved in the course of the sexual batteries. He was convicted under subsection 787.01(1)(a)2, Florida Statutes (1979), ⁵ which provides that kidnapping means to forcibly, secretly, or by threat, confine, abduct, or imprison another person against his will with the intent to commit or facilitate the commission of any felony. Sexual battery is a felony, so the issue is whether the threats and force used to transport the victims, and their subsequent detention, constitute a separate crime of kidnapping.

In Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), the Fifth District Court of Appeal construed section 787.01 and reasoned that, if it were literally applied, it would convert every first-degree robbery and every forcible rape into two life felonies. The court, using the test enunciated in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), went on to find that a kidnapping had occurred. Several courts have subsequently applied the Harkins construction of Buggs with seemingly inconsistent results. ⁶

In the instant case the district court also applied the test found in Buggs, where the Supreme Court of Kansas construed the Kansas kidnapping statute and established these requirements:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:

(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.

219 Kan. at 216, 547 P.2d at 731. In applying the facts of the instant case to these requirements the district court reasoned Each of the separate episodes involved in this case conforms with these requirements.

(a) The movements of both victims were effected by substantial force and violence inflicted by Faison to overcome their resistance and to make them to go where he wanted. It cannot be said, therefore, that the asportations were either slight, inconsequential or merely incidental to the sexual batteries which followed.

(b) These movements were not inherent or necessarily required in the commission of the sexual batteries, which could have been accomplished on the spot without any asportation whatever.

(c) Both abductions were from an area where the rape could have been more easily observed through a window--in the first victim's office, and the second one's kitchen--to the "relative seclusion" of the rear and restroom of the office and the bedroom of the home, respectively. Moreover, each asportation removed the victim from access to a door--again, in the office and in the kitchen--through which she might have escaped. Hence, each made the sexual battery substantially easier to commit and substantially reduced the danger of detection. Compare, Simpkins v. State, [395 So.2d 625 (Fla. 1st DCA 1981) ] (mere forced movement from bedroom to living room to accomplish sexual battery not kidnapping). The fact that relatively short distances were involved makes no difference.

399 So.2d at 21-22 (citations omitted, footnote omitted, emphasis in original).

Subsequent to the district court decision in the instant case, this Court interpreted section 787.01 in Mobley v. State, 409 So.2d 1031 (Fla.1982). In Mobley we observed that a literal construction of subsection 787.01(1)(a)2 "would apply to any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery." Id. at 1034. We then adopted the view that subsection 787.01(1)(a)2 did not apply to unlawful confinements or movements that were merely incidental to other felonies, but recognized an exception in the case of hostages.

Because of the facts in Mobley, we did not consider the standard to be applied in determining whether a particular movement or detention constituted kidnapping. After reviewing the decisions of our district courts ⁷ and the courts of other jurisdictions, ⁸ we are persuaded that the district court reached the correct result in the instant case. We do not approve, however, of the language and reasoning used by the court in note 2 to Faison, where the third district, apparently, argues for a literal interpretation of subsection 787.01(1)(a)2. We find that Harkins sets out the proper construction of the kidnapping statute, i.e.,

that "confining, 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.

380 So.2d at 528. We therefore approve Harkins and the Buggs test.

As hereinabove recited, the holding of the district court concerning Faison's conviction for sexual battery is quashed; the holding affirming the convictions for kidnapping is approved.

It is so ordered.

OVERTON, EHRLICH and SHAW, JJ., concur.

ALDERMAN, C.J., concurs in result only with an opinion, in which ADKINS, J., concurs.

BOYD, J., concurs in part and dissents in part with an opinion.

ALDERMAN, Chief Justice, concurring in result only.

I concur only in the result of this opinion affirming the convictions for kidnapping and quashing the district court's holding concerning Faison's conviction for sexual battery. By approving the Fifth District's construction of section 787.01(1)(a)2 in Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), the majority is rewriting the statute. I would approve the rationale of the decision of the Third District Court presently before us and particularly the language and reasoning contained in note 2 of its decision. The Third District determined that the facts in the present case met the criteria for establishing kidnapping under the Kansas statute that were set out in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), and subsequently recognized by the Fifth District and the First District as a proper interpretation of our kidnapping statute. It therefore found it unnecessary to pass on the validity of the statutory interpretation in Harkins v. State, Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980), and Simpkins v. State, 395 So.2d 625 (Fla. 1st DCA 1981). It did, however, question the correctness of these...