Opinion
No. 95-2130.
February 21, 1996.
An Appeal from the Circuit Court for Dade County, Joseph Farina, Judge.
Robert A. Butterworth, Attorney General and Fredericka Sands, Assistant Attorney General, for appellant.
Bennett H. Brummer, Public Defender and Craig J. Trocino, Special Assistant Public Defender, for appellee.
Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
The state appeals from an order granting the defendant's "(c)(4)" motion to dismiss a count of an information charging kidnapping under section 787.01(1)(a)2, Florida Statutes (1993), by confining the five-year-old victim to facilitate the commission of a robbery. We reverse because, contrary to the decision below, the showing that the defendant took the child from an at least semi-public waiting room to a private examining room of a doctor's office, where she took jewelry from the child, may be found to have constituted an imprisonment (by definition, against the will of the child, § 787.01(1)(b), Fla.Stat. (1993); Lafleur v. State, 661 So.2d 346 (Fla. 3d DCA 1995)) which was not "inconsequential" and had "significance independent" of the taking so as to support the separate charge of kidnapping. See Faison v. State, 426 So.2d 963, 965-66, (Fla. 1983), aff'g, 399 So.2d 19, 21 (Fla. 3d DCA 1981) (kidnapping established because movements of victim from open area to secluded one made crime substantially easier to commit and reduced risk of detection); Black v. State, 630 So.2d 609 (Fla. 1st DCA 1993), review denied, 639 So.2d 976 (Fla. 1994); Tutt v. State, 620 So.2d 1110 (Fla. 2d DCA 1993); Gay v. State, 607 So.2d 454 (Fla. 1st DCA 1992), review denied, 620 So.2d 760 (Fla. 1993); Rodriguez v. State, 558 So.2d 211 (Fla. 3d DCA 1990).
787.01 Kidnapping; kidnapping of child under age 13, aggravating circumstances
(1)(a) The term "kidnapping" means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
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2. Commit or facilitate commission of any felony.
COUNT 2
And the aforesaid Assistant State Attorney, under oath, further information makes that GAIL ROMEIS DAVIS on or about DECEMBER 08, 1994, in the County and State aforesaid, without lawful authority did then and there forcibly, secretly, or by threat, confine, abduct or imprison another person, to wit: T.D. (A MINOR) against that person's will and/or said victim being under the age of thirteen (13) years and said confinement was without the consent of said victim's parent or legal guardian, with the intent to commit or facilitate the commission of any felony, to wit: ROBBERY, in violation of s. 787.01, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.