Tutt v. State, s. 92-00627
| Decision Date | 30 June 1993 |
| Docket Number | 92-01249 and 92-01251,Nos. 92-00627,s. 92-00627 |
| Citation | 620 So.2d 1110 |
| Parties | 18 Fla. L. Weekly D1547 Cordell TUTT, Appellant, v. STATE of Florida, Appellee. Edwin Leon WILLIAMS, Appellant, v. STATE of Florida, Appellee. Melvin Lawrence PAUL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Robert D. Rosen, Asst. Public Defender, Bartow, for appellants.
Robert A. Butterworth, Atty. Gen., Tallahassee; Donna Provonsha-Lentz, David R. Gemmer and Michele Taylor, Asst. Attys. Gen., Tampa, for appellee State.
Because these three appeals involve codefendants who raise the same issue, we consolidate them for purposes of disposition.
All three appellants participated in a robbery of the McDonald's on Buffalo Avenue, Tampa. Each was convicted of seven counts of armed robbery and eight counts of armed kidnapping. The evidence supporting the robbery convictions is not challenged on appeal. However, the appellants do contend that their kidnapping convictions should be reversed. They rely heavily upon Walker v. State, 604 So.2d 475 (Fla.1992), and Kirtsey v. State, 511 So.2d 744 (Fla. 5th DCA 1987).
A review of the facts convinces us that the prosecution satisfied the three-prong test established by Faison v. State, 426 So.2d 963, 965 (Fla.1983). The victims included both customers and restaurant employees. All were ordered to proceed to the rear of the building and into a walk-in freezer. The appellants then forced them to lean against a wall, taking wallets and valuables. Having done this, the appellants closed the freezer door and ordered the victims to remain inside for thirty minutes. Although the door to the freezer could not be locked, the appellants pushed bread racks against it to prevent the victims from escaping. After having been enclosed for approximately five minutes (out of a total fifteen to twenty minutes inside the freezer), some of the victims forced the door open.
Kidnapping, when perpetrated with intent to facilitate commission of another felony, necessarily contemplates some forcible movement or confinement of the victim. However, such movement or confinement
(a) must not be slight, inconsequential, and merely incidental to the other offense; and (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.
The duration of the confinement is not an integral part of the test even though it may bear on whether the confinement was slight or inconsequential. Moreover, the determination of whether the confinement makes the other crime substantially easier of commission or substantially lessens the risk of detection does not depend upon the accomplishment of its purpose. The question is whether the initial confinement was intended to further either of those objectives.
Ferguson v. State, 533 So.2d 763, 764 (Fla.1988).
Both Walker and Kirtsey are distinguishable. The relevant facts of Walker appear at 604 So.2d 476:
At approximately 9:30 P.M., Walker entered a convenience store. After taking money from the cash register and from a customer, Walker ordered all four of the occupants of the store to go to the back of the store and lie on the floor. Three individuals moved a distance of thirty to forty feet but did not lie down. The fourth individual moved a distance of ten feet after Walker threatened to shoot him. Walker immediately left the store, and the clerk locked the door to the store and called the police.
The supreme court described this movement as "limited" and "not significant," 604 So.2d at 477, and thus insufficient to sustain a kidnapping conviction. Similarly,
Kirtsey and a male confederate forced their way into a Pizza Hut as the last two employees were closing the store. One of the employees was tied up and moved about the interior of the store. The other was forced to open the safe and threatened with a gun. No other acts of confinement or movement occurred.
511 So.2d at 745. The district court found these acts,...
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