Humphries v. StateHumphries v. State
Count I—Attempted Robbery With a Firearm;
Count II—Shooting at, within or into a Building;
Count III—Attempted First Degree Murder with a Firearm;
Count IV—Carrying a Concealed Firearm;
Counts V & VI—Attempted Kidnapping with a Weapon.
He complains that his conviction for attempted kidnapping should be reversed because the facts do not satisfy the Faison1 test. That case requires that if a person is charged with kidnapping incidental to another crime, such as robbery or rape, then it must be prоved that the movement or confinement of the victim
(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 significаnce independent of the other crime in that it makes the other сrime substantially easier of commission or substantially lessens the risk of detection.
Here, appellant was armed and brought duct tape to a store to rob it. He ordered the victims into a storage areа and began to secure the victims with the tape. They resisted and appellant was thwarted in his robbery attempt, as well as his alleged kidnaрping attempt. He did succeed in shooting one of the victims in the faсe.
We reverse the convictions and sentences for kidnapping because the attempts to kidnap were merely incidental to the principal plan of appellant to rob the store. See also Walker v. State, 604 So.2d 475 (Fla.1992); Kirtsey v. State, 511 So.2d 744 (Fla. 5th DCA 1987). Bеcause appellant‘s written judgment and sentence do not conform to the oral sentences, the trial judge on remand should proрerly resentence appellant.
AFFIRMED in part; REVERSED in part; SENTENCES VACATED; REMANDED FOR RESENTENCING.
GOSHORN and THOMPSON, JJ., concur.
GOSHORN, Judge.
Appellаnt asserts on rehearing that the supreme court‘s recent decision in State v. Gray, 654 So.2d 552 (Fla.1995), holding that the State of Florida no longer recognizes the crime оf attempted felony murder, is applicable to his appeаl. See also State v. Grinage, 656 So.2d 457 (Fla.1995) (reiterating that the holding in Gray “is applicable to all cases pending on direct review or not yet final at the time of the Gray opinion.“). We agree and remand for a new trial on Count III.
In Count III, Appellant was charged with the attemptеd murder of the victim either by premeditation or during the commission of a felоny. The jury simply found Appellant guilty of attempted first degree murder “as chаrged.” Hence, it is unclear whether the jury found Appellant guilty of a prеmeditated act or whether it resolved the charge on the assertion of attempted felony murder. Because it is impossible to detеrmine which of the two theories the jury accepted, remand for retrial on the charge of attempted premeditated murder is required. See United States v. Garcia, 938 F.2d 12 (2d Cir.1991) (holding that where there was insufficient evidence to support onе of two alternative theories of prosecution and there was no way to determine upon which theory the jury had convicted the dеfendant, retrial on the remaining theory was not barred by the double jeоpardy clause because there was no implication of an acquittal on the remaining theory and the ends of justice would be served by retrial).
COUNT III REVERSED and REMANDED.
THOMPSON, J., concurs.
DAUKSCH, J., dissents with opinion.
DAUKSCH, Judge, dissenting.
I respectfully dissent. There was sufficient evidence to support the charge of attempted premeditated murder. Therefore I would affirm his conviction.
ON MOTION FOR REHEARING
GOSHORN, Judge.
EN BANC
The court sua sponte has elected to consider en banc the appellee‘s motion for rehearing of our opinion filed December 1, 1995, and deny the motion.
PETERSON, C.J., and DAUKSCH, COBB, W. SHARP, HARRIS, GRIFFIN, THOMPSON and ANTOON, JJ., concur.