On August 3, 2010, President Obama signed the Fair Sentencing Act of 2010 which reduces sentences for crack-cocaine crimes. An article that appears on my website, Federal Criminal Lawyer: Frequently Asked Questions, looks at some of the details of this new law.
Before someone can be lawfully convicted of both false imprisonment and robbery, it must be proven that the movement or confinement associated with the false imprisonment was not "slight, inconsequential, and merely incidental" to the robbery. Such movement is considered slight and inconsequential when it is necessary or intertwined with the commission of the robbery.
In the case of Russell v. State of Florida, Mr. Russell was convicted of false imprisonment and robbery with a deadly weapon based on the following facts:
"On August 7, 2001, around 7:00 in the morning, a drive-through convenience store clerk was working in his store. He went outside to check on an ice machine. As he began heading back inside through the western door, he saw two men with masks running toward the eastern door. One man was holding a shovel handle and the other man was holding a machete. They were yelling at the clerk to open the safe. The clerk started to back up, but he fell. The masked men grabbed him by his shoulders and pulled him inside the store to the safe. The clerk opened the safe, then the cash drawer, and the two men put the money in a brown paper bag. One of the men was later identified as Charles Russell."
Florida's Fourth District Court of Appeal reversed Russell's conviction because:
1. The clerk was not confined any longer than the time it took for the robbery to occur; and
2. His confinement was merely incidental to the underlying robbery.
When someone is charged in an alleged drug conspiracy and that person is located in an automobile that has drugs in it at the time of his arrest, it is not enough that he is merely present in the car; there must also be “circumstances evidencing a consciousness of guilt” on his part before he can be convicted of conspiracy. My website, Federal Criminal Lawyer: Frequently Asked Questions, contains an article that examines one case in which such circumstances were not present.
In order to get your criminal record sealed or expunged in Florida, there are certain legal requirements that you must meet before a judge is even allowed to consider whether he or she will grant your request to seal or expunge your record. But if you do meet those requirements, a judge still is not required to grant your request; he or she may deny your request but only if there is a good reason to do so based upon the facts of your individual case.
A new FAQ article that I posted on my website Florida Criminal Records: Frequently Asked Questions looks at a case in which the judge failed to provide such a reason.
In Florida, the crime of false imprisonment is defined as "forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will." If the confinement is of a child who is less than 13 years old, it is against her will only if it occurs without the consent of her parent or legal guardian.
In the case of Andre v. State of Florida, Mr. Andre was convicted of aggravated false imprisonment based on the following facts:
"[O]n January 3, 2006, [Andre] and Mona Dosuede registered C.S. (the child) for elementary school. At Dosuede's request, [Andre] agreed to drive the child to school the following day. Dosuede testified that she was not the child's biological mother but that she had raised the child since she was two years old. There was no evidence presented that Dosuede had legal custody of the child.
The next day, [Andre] picked up the child to take her to school. Along the way, [Andre] covered the child with a shirt and while stopped at a red light, unbuckled her pants and touched her vagina. He then informed her that they were going to go to a motel. [Andre] pulled up to the motel around nine in the morning. The motel clerk observed [Andre] drive up and watched as the child exited the vehicle and entered the motel room while [Andre] remained outside. When the motel clerk approached [Andre] and asked what he was doing with the little girl, [Andre] informed him that he was waiting for the child's mother. Suspicious that something was wrong, the motel clerk wrote down [Andre's] license plate number. When the child came out of the room, the motel clerk approached the child and asked her if she was [Andre's] daughter. She did not respond but instead got in [Andre's] vehicle. [Andre] then left the motel and proceeded to drop the child off at her school. The motel clerk called the police, and [Andre] was subsequently arrested."
Mr. Andre appealed his conviction for aggravated false imprisonment, and Florida's Fourth District Court of Appeal reversed his conviction. In doing so, the appellate court stated that although Ms. Doseude testified that she was the child's godmother and that she had helped raise the child since she was two years old, no evidence was presented at Andre's trial that Dosuede had legal custody or guardianship of the child. And without such evidence, the prosecutor failed to prove that the confinement of the child was against her will.
In the case of Gray v. State of Florida, Mr. Gray was convicted of kidnapping based on the following facts:
"Gray entered a convenience store in Fernandina Beach on February 24, 2004, at around 11:00 p.m., wearing a mask. He seized the clerk by the hair, threatening to blow her head off if she tried to do anything. He continued to pull the victim by her hair to the office where the keys were located, then pulled her by the hair to the front door and ordered her to lock it. Leaving the keys in the front door, Gray forced her behind the counter and ordered her to open the two registers. He then took money from each, and directed the victim to lie face down between the registers and open the safe. She replied she could not open it, but she did retrieve two bills from the money drop. Gray then ordered her to remove all of her clothing except her undergarments. He further advised her he had a friend inside the store, and if she attempted to leave, the friend would blow her head off. The clerk heard him walk around the counter, heard the keys jingle, then the doorbell, and after listening for another 20 seconds, she pushed the panic button to notify the police, called 911, and dressed herself. The clerk reported that the robber took a large set of store keys, but he did not lock the door when he left. Neither did he make any sexual advances toward her, nor threaten her sexually."
Because Gray's movement and confinement of the clerk were part and parcel of the robbery and because that confinement ended as soon as Gray left the store, Florida's First District Court of Appeal reversed his conviction for kidnapping. The appellate court considered the following facts to be particularly important:
1. Although Gray threatened to kill the clerk, he did not bind her; and
2. Although he ordered the clerk to lock the store and take off her clothes, those actions did not go beyond the robbery itself because when Gray left the store the door was unlocked, and he also left the clerk's clothing behind, thus allowing her to dress as soon as he left.
Florida appellate courts have repeatedly said that simply moving a robbery victim at gunpoint from one room to another, even if a door is closed and the victim is ordered not to come out, does not constitute the crime of kidnapping.
For example, in the case of Cole v. State of Florida, Mr. Cole was charged with the crime of armed kidnapping based on the following facts:
"[T]he victim and her husband owned a Dollar Store, which Cole had patronized on several occasions. On July 8, 2003, the victim was working in the store when Cole came in to buy some candy. Cole approached the cash register and put money on the counter. When the victim opened the cash register to make change, Cole jumped over the counter and grabbed her by the neck. After a brief struggle, Cole pulled out a handgun. While holding the gun, he took money from the cash register, the victim’s purse, which had been behind the counter, and a DVD player. He also forced the victim to open a file cabinet that was behind the counter, apparently thinking it might contain additional cash. After finding no money in the file cabinet, Cole pointed the gun at the victim and told her to 'get in the bathroom and to stay there.'
The victim walked approximately ten feet to the bathroom and closed the door. Cole did not lock the victim in the bathroom and did not block the door. Two to three minutes later, the victim heard a chime that indicated the front door had been opened. At that point, she opened the bathroom door and found that Cole was gone. She then immediately called the police."
Florida's Second District Court of Appeal held that Cole's actions of pointing a gun at the victim while telling her to go inside the bathroom and stay there did not rise to the level of a kidnapping for the following reasons:
1. Cole's movement of the victim into the bathroom took a very small amount of time;
2. This movement occurred at the very end of the robbery;
3. It was the type of movement that was likely to naturally accompany a robbery; and
4. The confinement of the victim in the bathroom ceased naturally with the robbery.
In Florida, the crime of kidnapping can be committed in four different ways.
"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."
In the case of Conner v. State of Florida, Florida's Second District Court of Appeal stated that if a person is accused of kidnapping by means of method number 2 "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."
The Conner Court then gave the following three examples of when an action constitutes kidnapping and when it does not using these criteria:
1. "A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is."
2. "The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is."
3. "The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is."
Several cases in Florida have been overturned on appeal where people were wrongfully convicted of kidnapping because their actions did not meet the three criteria listed above. I will look at some of those cases in my next few articles.
In the case of State of Florida v. Figarola, Mr. Figarola was charged with child abuse because he struck his son Carlos twice for refusing to eat food which Mr. Figarola had prepared and served. Mr. Figarola split Carlos' lip when he struck him, and he also caused Carlos to choke while trying to force him to eat.
Florida's Third District Court of Appeal concluded that Mr. Figarola's "behavior was [not] so excessive or unreasonable and beyond the scope of parental discipline so as to constitute child abuse." The appellate court reached this conclusion for the following three reasons:
1. There was no evidence that Mr. Figarola inflicted significant bruises or welts on his son in violation of Florida's civil child abuse law.
2. No evidence was presented that Carlos needed medical treatment as was the case in State of Florida v. McDonald.
3. Mr. Figarola did not intend to injure his son but instead did so accidentally, unlike what occurred in the case of Raford v. State of Florida.
In the case of King v. State of Florida, Mr. King, who was a school administrator, was charged with child abuse based on the following facts:
"One of the disciplinary policies at Charlotte Regional Christian Academy is the use of corporal punishment, and the parent of each enrolled student signs a form consenting to the administration of the punishment. King testified that he spanked the eight-year-old student two times on her clothed buttocks with a wooden paddle as a punishment for cheating and lying. The paddling took place in a classroom away from other students and was witnessed by a school volunteer and King’s wife. The student suffered significant welts and bruises on her buttocks as a result of the paddling, but did not require any medical treatment. Although her mother testified that the student had become withdrawn after the paddling, there was no evidence that she suffered any discernible impairment in her ability to function within her normal range of performance and behavior."
Florida's Second District Court of Appeal concluded that Mr. King's actions did not constitute child abuse because "spankings that result in significant bruises or welts do not rise to the level of felony child abuse." However, the court did state that King may have committed the crime of contributing to the dependency of a child.
Enter keywords:
Serving clients throughout Florida including:
