State v. Smith, SC01-1456.

CourtUnited States State Supreme Court of Florida
Writing for the CourtWELLS, J.
Citation840 So.2d 987
PartiesSTATE of Florida, Petitioner, v. Lorenzo SMITH, Respondent.
Docket NumberNo. SC01-1456.,SC01-1456.
Decision Date06 February 2003

Charles J. Crist, Jr., Attorney General, and Mary G. Jolley and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, for Petitioner.

James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Respondent.

WELLS, J.

We have for review Smith v. State, 785 So.2d 623, 625-26 (Fla. 5th DCA 2001), which expressly and directly conflicts with the decision in Chaeld v. State, 599 So.2d 1362, 1364 (Fla. 1st DCA 1992). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we quash the decision below in part and direct that respondent's false imprisonment conviction be affirmed.

The respondent was convicted by a jury of burglary of a dwelling, robbery with a weapon, and false imprisonment. The facts are more fully set forth in the district court's opinion. See Smith, 785 So.2d at 624-25

. The district court agreed with the respondent's argument that the false imprisonment was incidental to and inherent in the robbery, reversed the conviction for false imprisonment, but otherwise affirmed. See id. at 625-26. Regarding the reversal of the false imprisonment conviction, the district court compared Formor v. State, 676 So.2d 1013, 1015 (Fla. 5th DCA 1996), which reversed a kidnapping conviction based on the test announced in Faison v. State, 426 So.2d 963 (Fla.1983).1

See

Smith, 785 So.2d at 625-26. The district court held:

Although the state argues that Faison, which involved a kidnapping charge, should not be applied to cases involving false imprisonment charges, this court has previously done so. See Keller v. State, 586 So.2d 1258, 1261-62 (Fla. 5th DCA 1991)

(reversing convictions for false imprisonment where false imprisonment was incidental to sexual battery); but see Chaeld v. State, 599 So.2d 1362 (Fla. 1st DCA 1992) (refusing to apply Faison to false imprisonment charge). Therefore, there is no real legal difference between the convictions in Formor, robbery and kidnapping, and the convictions in the instant case, robbery and false imprisonment. Although Smith did not object below to this error, the error is fundamental.

Smith, 785 So.2d at 626 (citation omitted).

The respondent was convicted of false imprisonment under section 787.02(1)(a), Florida Statutes (1997), and robbery under section 812.13, Florida Statutes (1997). Section 787.02(1)(a) defines false imprisonment as

forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.

Section 812.13 defines robbery as

the taking of money or other property which may be the subject of larceny from the person or custody of another, with the intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Section 775.021(4)(b), Florida Statutes (1997), entitled "Rules of construction," expressly states:

The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Because the respondent's convictions for false imprisonment and robbery do not meet the exceptions listed in section 775.021(4)(b), the convictions are separate criminal offenses committed in the course of one criminal episode. Thus, the respondent was properly convicted of both robbery and false imprisonment, and the district court erred in reversing the respondent's false imprisonment conviction.2

The Faison test is not applicable to false imprisonment convictions because the test was established for a particular element of the kidnapping statute that is not included in the false imprisonment statute. Kidnapping is defined in section 787.01(1)(a), Florida Statutes (1997), as follows:

The term kidnapping means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or 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.

As this Court stated in Berry v. State, 668 So.2d 967, 969 (Fla.1996), the Faison test was established because

this Court recognized that a literal interpretation of subsection 787.01(1)(a)2 would result in a kidnapping conviction for "any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery." Thus, in an effort to limit the circumstances under which a confinement, abduction, or imprisonment will constitute kidnapping under subsection 787.01(1)(a)2, this Court in Faison adopted the test of the Supreme Court of Kansas.

Berry, 668 So.2d at 969 (emphasis added). False imprisonment does not contain a provision requiring proof of the intent to commit or facilitate commission of any felony and therefore Faison is not applicable.3

In State v. Lindsey, 446 So.2d 1074, 1076 (Fla.1984), this Court cited to Faison as support for upholding a false imprisonment conviction. This Court stated:

The district court ... rejected [the respondents'] other point on appeal in which they argued that their convictions for false imprisonment were reversible error because the acts of confinement were incidental to the commission of the offense of robbery or to the assault element of the aggravated burglary offense. The respondents now argue that this latter ruling by the district court of appeal was error. We disagree. The offense of false imprisonment was proved by evidence that the intruders confined the victim by tying her up with rope. It was entirely separate from the element of force exerted in committing the robbery and from the element of assault relied upon to aggravate or enhance the offense of burglary. See Faison v. State, 426 So.2d 963 (Fla.1983)

. Moreover, even if there were elements of factual proof common to two or more of the crimes, it is not clear that this would entitle respondents to the relief they seek since the matter of what statutory crimes were committed by the respondents' acts is purely one of legislative intent. See 775.021(4), Fla. Stat. (1979); Borges v. State, 415 So.2d 1265 (Fla.1982). We therefore approve the decision of the district court of appeal on this second issue.

Lindsey, 446 So.2d at 1076 (citation omitted). This passing reference to Faison has understandably caused some confusion.

After Lindsey, several district courts applied the Faison test to false imprisonment. See, e.g., Taylor v. State, 771 So.2d 1233, 1234 (Fla. 2d DCA 2000)

; Rohan v. State, 696 So.2d 901, 903 (Fla. 4th DCA 1997); Keller v. State, 586 So.2d 1258, 1261-62 (Fla. 5th DCA 1991); Perez v. State, 566 So.2d 881, 884 (Fla. 3d DCA 1990). However, in Chaeld v. State, 599 So.2d 1362, 1364 (Fla. 1st DCA 1992), the court held that a jury instruction based on Faison was not applicable when a charge alleges false imprisonment. The Chaeld court held:

This so-call Faison instruction must be given upon the defendant's request whenever the state charges kidnapping with the intent to commit or facilitate the commission of a felony under § 787.01(1)(a)2. It has no application when the charge alleges that the defendant kidnapped the victim with any of the other specific intentions identified in § 787(1)(a)1, 3 or 4. See Bedford v. State, 589 So.2d 245, 251 (Fla.1991)

(holding that a defendant charged with kidnapping with the intent to inflict bodily harm upon or terrorize the victim is not entitled to a Faison instruction).

Because the Faison instruction is implicated only when the state is attempting to prove a kidnapping with the intent to commit or facilitate the commission of a felony, and the crime of false imprisonment by definition and as interpreted by the supreme court in Sanborn does not require proof of such intent, we conclude that the judge properly denied the appellant's request for a Faison instruction.

Id. at 1364 (citations omitted). The Chaeld court noted that its holding possibly conflicted with other district court decisions. See id.4

The Chaeld court cited this Court's decision in Bedford v. State, 589 So.2d 245 (Fla.1991), in which this Court stated:

Bedford was charged with confining, abducting, or imprisoning [the victim] with the intent to "[i]nflict bodily harm upon or to terrorize" [the victim] under section 787.01(1)(a), (3), rather than with the intent to "[c]ommit or facilitate commission of any felony," under subsection 787.01(1)(a), (2). Our decision in Faison v. State, 426 So.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.

Bedford, 589 So.2d at 251 (second and fourth alterations in original). This Court's decision in Bedford clearly supports the conclusion that the Faison test does not apply to the offense of false imprisonment. False imprisonment does not include an element requiring the intent to commit or facilitate commission of a felony, and therefore Faison is not applicable to the offense of false imprisonment. If a criminal defendant can be charged with kidnapping based on intent to terrorize and also...

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