Rauso v. State, 81-1343
| Decision Date | 12 January 1983 |
| Docket Number | No. 81-1343,81-1343 |
| Citation | 425 So.2d 618 |
| Parties | Mickie Frank RAUSO a/k/a Michael Frank Rauso and Sherry Irene Woodward, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant-Woodward.
Channing E. Brackey of Brackey, Finkelstein & Dallas, P.A., Fort Lauderdale, for appellant-Rauso.
Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
Appealed here are two felony judgments and sentences. Mickie Frank Rauso was convicted by a jury of false imprisonment and battery. The felony judgments reflect adjudications of guilty of kidnapping and sexual battery. The respective sentencing documents, however, reflect the crimes actually adjudicated by the jury. We remand for correction of the clerical errors in the judgments which will not necessitate the presence of appellant, Rauso.
Appellants raise several grounds for reversal and new trial. We find them to be without merit under the circumstances of this case. Only two points warrant brief discussion.
Appellants claim ineffective assistance of counsel. The record amply demonstrates the appropriateness of application of the rule in State v. Barber, 301 So.2d 7 (Fla.1974), to the facts of this case as opposed to the exception engrafted onto the rule by Foster v. State, 387 So.2d 344 (Fla.1980). Under Barber the question of adequacy of representation may not be raised for the first time on direct appeal. Foster creates an exception where actual conflict of interest or prejudice is shown. See Washington and Thompson v. State, 419 So.2d 1100 (Fla. 3d DCA 1982). Appellants are not precluded from seeking review by way of a proceeding on this issue pursuant to Florida Rule of Criminal Procedure 3.850.
Appellants additionally complain that, having been informed against for kidnapping, they could not be convicted of false imprisonment because the latter is not a lesser included offense of the former. While we are inclined to agree with this position for reasons we will shortly discuss, the argument is to no avail in the present case because counsel not only acquiesced in treatment of false imprisonment as a charge to be tried, but also specifically invited the trial court to "reduce" the charge to false imprisonment. Appellants are bound by the position of trial counsel. Castor v. State, 365 So.2d 701 (Fla.1978).
We now indulge in dicta for the guidance of counsel in future cases and as an invitation to the legislature to consider whether a change is desirable.
Appellants were charged with kidnapping. The statute under which they were charged provides, in pertinent part:
787.01 Kidnapping.-- (1)(a) "Kidnapping" means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.
Appellants were found guilty of the crime of false imprisonment. That statute provides, inter alia:
787.02 False imprisonment.--
(1)(a) "False imprisonment" means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will with any purpose other than those referred to in s. 787.01.
The question is whether false imprisonment is a lesser included offense of kidnapping.
The categories of lesser included offenses have been reduced to two:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.
The "Schedule of Lesser Included Offenses" of the Florida Standard Jury Instructions In Criminal Cases lists false imprisonment as a...
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...7 (Fla.1974), the question of the adequacy of representation may not be raised for the first time on direct appeal, Rauso v. State, 425 So.2d 618 (Fla. 4th DCA 1983); Pinder v. State, 421 So.2d 778 (Fla. 5th DCA 1982); McMillian v. State, 403 So.2d 994 (Fla. 2d DCA 1981); Walker v. State, 3......
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...to the defendant is shown. Stewart v. State, 420 So.2d 862 (Fla.1982); State v. Barber, 301 So.2d 7 (Fla.1974), and Rauso v. State, 425 So.2d 618 (Fla. 4th DCA 1983). The main allegations against counsel here, that he should not have advised the defendant to testify and that he should have ......
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...court disapproved this court's decision in Williamson v. State, 510 So.2d 335 (Fla. 4th DCA 1987), and, sub silencio, Rauso v. State, 425 So.2d 618 (Fla. 4th DCA 1983). As a result of the decision in Sanborn, in November, 1988, when this case came to trial in late February, 1989, false impr......