“Double Offense” Problems in Kidnapping and False Imprisonment Cases
Florida criminal law has long protected a person’s interest in freedom from unlawful restraints and confinements. Current statutes recognize the offenses of kidnapping and false imprisonment. Both statutes create a “double offense”problem well known in this area of the law: They define the constraint element of the offenses so broadly that the type of constraint inherent in the commission of other offenses ( e.g., robbery, sexual battery) often also proves an additional offense of kidnapping or false imprisonment. Although Florida courts have dealt with this problem to some extent, it still exists. This article discusses the case law and offers possible solutions to the problem.
Constraint Element in Florida Statutes
Kidnapping is defined as forcibly, secretly, or by threat confining, abducting, or imprisoning another. . . 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[; or] 4. interfere with the performance of any governmental or political function.1
False imprisonment is defined as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will.”2 In this article, the actus reus element of these offenses—“confining, etc.”—will be called the constraint element.
These two offenses “are identical except for the question of intent.”3 Thus, although there are no Florida cases defining the constraint element of kidnapping, the cases addressing that element in false imprisonment should also apply to kidnapping.
Those cases broadly define the constraint element to include any “act. . . depriving the victim of personal liberty or freedom of movement for any length of time.”4 The constraint need not be “substantial”; “some amount of force to [con]strain” is sufficient, even though the victim is only “briefly deprived of her ability to leave.”5 False imprisonment convictions have been upheld when the defendant: grabbed the victim’s elbow and jerked her arm back and forth “kind of like a tug of war”;6 wrapped his arms around the victim and held her in “a bear hug”;7 grabbed the victim by her shoulders as she walked away from her door and tried to pull her into her home;8 followed two victims into their motel room, forced them at gunpoint to lie on the bed, then ordered them into the bathroom while he searched the room;9 hit the victim over the head with a bicycle pump, then “pin[ned] her against a fence” for five to 10 minutes while he hit her;10 held the victim on a sofa at gunpoint while his accomplice searched the house;11 grabbed the victim by her hair when she tried to leave, “wrestled her to the ground, pinned her arms underneath her legs, started to choke her[, then] dragged her by the hair and neck from the living room to the bedroom”;12 grabbed the victim, “slung her against the counter and grabbed her hand and put it on his penis”;13 and grabbed the victim and pushed her into a car, then held her down while “ask[ing] her how much money she had.”14
With such a broad definition of constraint, both kidnapping and false imprisonment are vulnerable to the double offense problem. As the cases just noted show, under this broad definition the constraint that often occurs during the commission of other offenses would also constitute a separate offense of kidnapping or false imprisonment.
The source of this problem is the 1974 law that enacted the current Florida statutes.15 The pre-1974 statutes outlawed “forcibly or secretly confin[ing] or imprison[ing] another. . . , with intent to either cause him to be confined or imprisoned. . . , or cause him to be sent out of this state[, or] to hold. . . for ransom.”16 The constraint elements in the current statutes are essentially identical to the elements in the former statutes. However, the expanded intent provisions significantly broadened the scope of the offenses, thus creating the double offense problem.
The current kidnapping statute is a hybrid of the former statutes and the Model Penal Code. The four intents contained in §787.01(1)(a)1-4 come directly from the code. However, the code has a more restrictive constraint element: “remov[ing] another from his residence or place of business, or a substantial distance from the vicinity where he is found, or. . . confin[ing] another for a substantial period in a place of isolation.”17
The code’s authors were aware of the double offense problem. That problem often arose in states that broadened the definition of kidnapping. At common law, “kidnapping was a relatively unknown and inconsequential offense[,] defined as the unlawful confinement and transportation of another out of the country.”18 The offense was statutorily expanded over the years. However, when the asportation requirement of the common law offense is reduced to a simple constraint element, a strict reading of a kidnapping statute could lead to “relatively trivial instances of unlawful restraint. . . be[ing] dealt with as severely as abductions for ransom.”19 Noting “[t]he crime of kidnapping has always required more than the unlawful assertion of physical control over another,” the code’s authors asserted:
The central problem in the law of kidnapping is to restrict the drastic sanctions for this offense to instances of misbehavior warranting such punishment. The challenge. . . is to define the crime in terms that identify a distinct kind of wrongful act. . . .
* * *
[T]he definition of kidnapping [should not] sweep within its scope conduct that is decidedly wrongful but that should be punished as some other crime.20
The code’s authors felt the offense of kidnapping should be “confined to cases of substantial isolation of the victim from his normal environment, [i.e.,] frightening and dangerous form[s] of aggression not adequately dealt with by other offenses.”21 In adopting a conservative constraint element, the code sought to restrict kidnapping “to cases of substantial removal or confinement,” in order to both “punish conduct that effects substantial isolation of the victim from the protection of law” and “confine the offense to instances where the degree of removal and confinement coupled with the purpose of the kidnapper render the conduct especially terrifying and dangerous.”22
When the Florida Legislature grafted the code’s four intents onto a broad constraint element, the legislature created the double offense problem the code tried to avoid. That problem has arisen in the Florida cases with respect to both kidnapping and false imprisonment. The case law has recognized that constraints which are an inherent part of another felony cannot constitute a separate offense of felony-facilitation kidnapping under §787.01(1)(a)3. However, the same problem arises with the offenses of false imprisonment and the bodily harm or terror (hereinafter “bodily harm”) form of kidnapping under §787.01(1)(a)2. Although the Florida cases have recognized this, they have failed to remedy the problem. Indeed, the cases are arguably correct under the applicable rules of statutory construction.
Double Offense Problem and Kidnapping
• Felony-Facilitation Kidnapping and the Faison Test
With respect to felony-facilitation kidnapping, the Florida Supreme Court recognized in Faison v. State, 426 So. 2d 963 (Fla. 1983), that “a literal construction of [that offense] would apply to any criminal transaction which inherently involves the unlawful con[straint] of another person,” which would “convert every. . . robbery and. . . rape into two life felonies.” Id. at 965–66 (citations and internal quotation marks omitted). To avoid this problem, Faison adopted a three-part test for determining when a constraint constitutes a separate offense of felony-facilitation kidnapping. The constraint:
(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.23
Thus, there can be no felony-facilitation kidnapping if “the only con[straint] involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.”24
• Other Forms of Kidnapping
The Florida Supreme Court has held the Faison test does not apply to the shield-or-hostage form of kidnapping under §787.01(1)(a)1.25 This conclusion is correct and would also apply to the ransom-or-reward and interfere-with-function forms of kidnapping under §787.01(1)(a)1 and 4. The Faison test is not needed in these cases because constraining a victim for shield, ransom, or interference purposes is not an inherent component of other crimes. These forms of kidnapping address individual and social harms not necessarily addressed by other offenses.
The Florida Supreme Court has also held the Faison test does not apply to the bodily harm form of kidnapping. In Bedford v. State, 589 So. 2d 245, 248 (Fla. 1991), the defendants “plann[ed] to frighten [the victim] by binding her up and taking her out to the Everglades and dumping her.” They bound and blindfolded her, drove her around, raped and beat her, and eventually strangled her to death. Summarily concluding Faison “has no application here,” Bedford affirmed the kidnapping conviction because the evidence “prove[d] a specific intent to do bodily harm or terrorize [the victim] under any definition of the latter term.”26
Bedford gave no reason for rejecting the Faison test in bodily harm kidnappings. Under the facts of Bedford, there was no need to consider the question; the Faison test was clearly met there. With other facts, bodily harm kidnapping creates a serious double offense problem if the Faison test is not used. As discussed in the next section, the Florida Supreme Court recently recognized “a criminal defendant can be charged with kidnapping based on intent to terrorize and also be convicted of robbery based on confinement that is inherent to both crimes.”27
There are no Florida cases defining the phrase “bodily harm or terrorize.”28 If the phrase includes the harm or terror inherent in the commission of other offenses, we have the same problem identified in Faison: “convert[ing] every. . . robbery and [sexual battery] into two life felonies.”29 The intent to commit a sexual battery would always establish a bodily harm kidnapping; sexual batteries inherently inflict bodily harm on the victim. Although robberies do not necessarily require infliction of bodily harm, the force element of that offense often includes the infliction of such harm; and, even in cases where no harm is inflicted, the act that proves the force element can often be said to be intended to terrorize the victim.30
Thus, the state can avoid having to satisfy the Faison test by simply charging a bodily harm kidnapping rather than a felony-facilitation kidnapping. Further, with bodily harm kidnapping, the double offense problem extends to some misdemeanors as well. Assaults and batteries often naturally include some type of constraint against the victim (at least under the broad definition of constraint noted above). Grabbing the victim, spinning him around, and punching him in the nose is not a simple battery, but a kidnapping: There was a “forcibl[e] con[straint] with intent to inflict bodily harm.”31 “Stay where you are or I’ll punch you in the nose” is not a simple assault but a kidnapping.32
This problem could be avoided (or, at least, mitigated) if we adopt a modified Faison test here and say bodily harm kidnapping requires proof of an intent to inflict bodily harm or terror beyond that inherent in the commission of another offense. But this would be “effectively. . . writing an intent element into the. . . statute in derogation of the clear statutory language,” which, as discussed below, the Florida Supreme Court recently held constitutes improper judicial legislating.33
Double Offense Problem and False Imprisonment
The double offense problem also arises in false imprisonment cases. The difference between a Faison situation and a false imprisonment case is one of degree of penalty only. The fact that false imprisonment has no felony-facilitation intent requirement only reinforces this conclusion; it merely lowers the state’s burden of proving the second offense. A constraint that fails the Faison test is nonetheless sufficient to prove false imprisonment; the Faison problem does not arise unless the statutory constraint element is first satisfied. Thus, with false imprisonment, such constraints will raise the same double offense problem noted in Faison. The fact that the constraint was motivated by an intent to facilitate the commission of a felony is irrelevant. This intent is not an element of, and (more importantly) it does not disprove, false imprisonment. Further, as in the bodily harm context, the double offense problem here arises with respect to some misdemeanors.
Four of the five district courts accepted this logic and held the Faison test applied to false imprisonment; one court disagreed.34 In State v. Smith, 840 So. 2d 987 (Fla. 2003), the Florida Supreme Court adopted the minority position.
Smith was convicted of robbery and false imprisonment. He followed two victims into their motel room, forced them at gunpoint to lie on the bed, then ordered them into the bathroom while he searched the room. In affirming the two convictions, the Florida Supreme Court relied on F.S. §775.021(4)(b) (1997). Section 775.021(4)(b) directs courts to affirm multiple convictions if each offense “requires proof of an element that the other does not,” unless the offenses: “[1.] require identical elements of proof[; 2.] are degrees of the same offense as provided by statute[; or 3.] are lesser offenses the statutory elements of which are subsumed by the greater offense.”35 The court found the offenses of robbery and false imprisonment each contain unique elements and the two offenses are not within a listed exception. Further, unlike felony-facilitation kidnapping, “[f]alse imprisonment does not contain a provision requiring proof of the intent to commit or facilitate commission of any felony.”36 Noting Bedford held that Faison does not apply to bodily harm kidnappings, the court concluded:
If a criminal defendant can be charged with kidnapping based on intent to terrorize and also be convicted of robbery based on confinement that is inherent to both crimes, it is illogical to find that a person could not be convicted of false imprisonment and robbery when false imprisonment only requires general intent. Requiring Faison to be applied to false imprisonment would effectively be writing an intent element into the false imprisonment statute in derogation of the clear statutory language.37
Smith was a 4-3 decision. The dissenters argued:
[The majority] focuses on the scienter requirement of the kidnapping and false imprisonment statutes. However, the rationale of Faison is that the conduct element of [felony-facilitation kidnapping] must be limited to [prevent] doubly criminaliz[ing] the same conduct. . . . The false imprisonment statute. . . contains a conduct element similar to that of kidnapping; without any limitation it might apply in almost every forcible felony. . . .* * *
False imprisonment is a necessarily lesser included offense of kidnapping. . . . Because both. . . statute[s] contain the same conduct element that without limitation might apply to almost every forcible crime, a Faison analysis is equally applicable to both offenses.* * *
[A] literal reading of the false imprisonment statute would turn every forcible crime into a false imprisonment. . . . The purpose of Faison is to ensure that the confinement crime is distinct from other criminal charges involving forcible felonies. . . .38
Both opinions contain logical force and analytical flaws. The dissent did not respond to the majority’s argument based on §775.021(4), an argument solidly grounded in constitutional separation of powers principles. The majority’s attempt to distinguish false imprisonment from felony-facilitation kidnapping is unpersuasive, for the reasons advanced by the dissent. Both sides are right, viewed from their perspectives: Under §775.021(4), the dual convictions are mandated by statute; but the same double offense problem identified in Faison will arise here.39
The Smith majority seems to recognize the problem, but feels bound by §775.021(4) to ignore it. It is hard to fault the majority in this; §775.021(4) is clear on its face.
The Smith majority also recognizes the double offense problem in bodily harm kidnappings: A defendant can be convicted of both bodily harm kidnapping and robbery “based on confinement that is inherent to both crimes.”40 Indeed, since current §775.021(4) was not in effect when Faison was decided, it could be argued that statute effectively overruled Faison.41 As with false imprisonment, a strict application of §775.021(4) compels the conclusion that double convictions are permitted in the felony-facilitation context. As Smith noted with respect to false imprisonment, the Faison test “writ[es] an [additional] element into [felony-facilitation kidnapping] in derogation of the clear statutory language.”42
The double offense problem identified in Faison still exists for both bodily harm kidnapping and false imprisonment.
To which many may reply: “So what?” The double offense problem is a “problem” only if one is troubled by defendants getting additional convictions in cases where the problem arises. Such defendants are hardly a sympathetic lot. definition, the problem only arises in cases where the defendant has committed a violent crime. It may be that the legislature (and the people of the state) are quite content with the current scheme. It is true this puts additional power into the hands of prosecutors, who can add charges of kidnapping and false imprisonment onto garden variety violent offenses.43 But, again, this is a problem only if one is troubled by prosecutors possessing such power.
Yet there is something to be said for rationality and proportionality in the law. If we wish to convert misdemeanors into felonies, or significantly increase the punishment on violent crimes, then we should expressly do so. The backdoor method of relaxing the constraint element for kidnapping and false imprisonment may lead to the type of discriminatory enforcement and arbitrary results that engenders disrespect for the law.
The author suggests the following:
First, one factor found in many cases affirming felony-facilitation kidnappings is the binding/gagging/blindfolding of the victim.44 Such actions are not inherent in the commission of other offenses, and they constitute an aggravating factor properly considered when determining punishment. But this might be better treated as an enhancement factor (similar to the use of a weapon or the wearing of a mask45), rather than as a separate offense.
Second, with respect to false imprisonment and bodily harm kidnapping, some version of the Faison test should be required.46 Bodily harm kidnapping should be confined to cases with Bedford-like facts or along the lines suggested by the Model Penal Code. False imprisonment should be restricted to more substantial constraints not inherent in the commission of other offenses.
Determining when a constraint constitutes a sufficient invasion of a victim’s rights to constitute an additional offense of kidnapping or false imprisonment is not easy. But if we are to recognize such offenses (and we should), we need to ensure the offenses are defined in such a way as to provide additional protection to victims when it is needed, in a manner clear enough to ensure the offenses are neither overly used nor arbitrarily applied.
1 Fla. Stat. §787.01(1)(a) (2003). Subsections 1 through 4 create four separate offenses. Justus v. State, 438 So. 2d 358, 367 (Fla. 1983).
2 Fla. Stat. §787.02(1)(a) (2003).
3 State v. Sanborn, 533 So. 2d 1169, 1170 (Fla. 1988) (holding false imprisonment is a necessary lesser included offense of kidnapping); State v. Graham, 468 So. 2d 270, 271 (Fla. 1985).
4 Proko v. State, 566 So. 2d 918, 920 (Fla. 5th D.C.A. 1990).
5 Id. at 920.
6 Id. at 920.
7 Jane v. State, 362 So. 2d 1005, 1006 (Fla. 4th D.C.A. 1978).
8 Chaeld v. State, 599 So. 2d 1362, 1364 (Fla. 1st D.C.A. 1992).
9 State v. Smith, 840 So. 2d 897 (Fla. 2003).
10 State v. Waits, 28 Fla. L. Weekly S139 (Fla. Feb. 13, 2003).
11 Davis v. State, 816 So. 2d 840, 841 (Fla. 1st D.C.A. 2002).
12 Stringer v. State, 783 So. 2d 1153, 1154 (Fla. 4th D.C.A. 2001).
13 Blanchard v. State, 634 So. 2d 1118, 1119 (Fla. 2d D.C.A. 1994), receded from on other grounds, Aiken v. State, 742 So. 2d 811 (Fla. 2d D.C.A. 1999).
14 Hearns v. State, 378 So. 2d 70, 71 (Fla. 3d D.C.A. 1979).
15 1974 Fla. Laws ch. 383, §§22–23.
16 Fla. Stat. §805.01–02 (1973).
17 Model Penal Code §212.1 (Proposed Official Draft 1962).
18 Id., comment 1.
23 Faison, 426 So. 2d 963 (citation omitted).
24 Berry v. State, 668 So. 2d 967, 970 (Fla. 1996).
25 Fitzpatrick v. State, 437 So. 2d 1072 (Fla. 1983).
26 Bedford, 589 So. 2d at 251.
27 Smith, 840 So. 2d at 991.
28 The Model Penal Code comments assert this form of kidnapping was intended to include “vengeful or sadistic abductions involving threat of torture, death, or other extremely frightening experience.” Model Penal Code §212.1, comment 4. As noted earlier, the code has a more limited constraint element, thus avoiding the double offense problem.
29 Faison, 426 So. 2d at 965.
30 Robbery requires the use of “force, violence, assault, or putting in fear.” Fla. Stat. §812.13(1) (2003). “Assault” is defined as “an intentional, unlawful threat by word or act to do violence to. . . another, coupled with the apparent ability to do so, and doing some act which creates a well-founded fear in such person that violence is imminent.” Fla. Stat. §784.011(1) (2003). “Terror” is defined as “extreme fear. . . fright, dread, horror, anxiety, dismay.” Oxford Desk Dictionary 828 (Amer. Ed. 1997). Although, under these definitions, it may be theoretically possible to rob someone without intending to terrorize or inflict bodily harm upon them, the cases would be few and the dividing line hazy at best.
31 Fla. Stat. §787.01(1)(a)3 (2003).
32 Florida cases have upheld convictions for bodily harm kidnapping on the following facts: “[T]he victim was dragged by her throat for almost 10 feet from one room to another [during] the defendant’s vicious attack,” Lee v. State, 770 So. 2d 231, 231–32 (Fla. 3d D.C.A. 2000); “[D]efendant entered the gym while the victim was alone[,] robbed her at gunpoint and then directed her through a doorway into a nearby hallway[, a distance of] three feet,” Carter v. State, 762 So. 2d 1024, 1027 (Fla. 3d D.C.A. 2000); the defendants forced their way into the victims’ home, forced them to go upstairs, detained and tied them while searching the bedroom, struck and threatened them, then forced them downstairs, Biggs v. State, 745 So. 2d 1051, 1052–53 (Fla. 3d D.C.A. 1999); “[D]efendant, driving a van, pointed an air pistol at the victim and said, ‘Get in the van or I’ll kill you,’” Duba v. State, 446 So. 2d 1167, 1168 (Fla. 5th D.C.A. 1984) (affirming attempted kidnapping conviction); and “[T]he defendant uttered the words, ‘walk over, otherwise you are going to die,’ and, with knife in hand, forced the victim to walk away from an airline counter, and[,] when a struggle ensued after he and the victim had proceeded some 20 feet[, the defendant] brandished another knife and yelled, ‘This man is going to die,’” Dopazo v. State, 428 So. 2d 360, 360 (Fla. 3d D.C.A. 1983).
These cases create the same double offense problem identified in Faison. In several of these cases, the constraint is the type that inherently occurs during the commission of other offenses.
33 Smith, 840 So. 2d at 991–92.
34 Davis, 816 So. 2d at 840–41 (collecting cases).
35 Fla. Stat. §775.021(4)(b)1–3.
36 Smith, 840 So. 2d at 992.
37 Id. (footnote omitted).
38 Id. at 992–93 (Pariente, J., dissenting) (citations omitted).
39 This is shown by the pre-Smith district court cases which held the Faison test applied to false imprisonment. Those cases found the following facts failed to prove a separate offense of false imprisonment: grabbing the victim from behind and holding her down, Taylor v. State, 771 So. 2d 1223 (Fla. 2d D.C.A. 2000); chasing, tackling, and holding the victim down, Geske v. State, 770 So. 2d 252 (Fla. 5th D.C.A. 2000); forcing the victim from a cash register to a stockroom, pinning her arm against the wall, and choking her, McCutcheon v. State, 711 So. 2d 1286 (Fla. 4th D.C.A. 1998); pushing the victim into her apartment and onto her bed, then getting on top of her and choking her, Rohan v. State, 696 So. 2d 901 (Fla. 4th D.C.A. 1997); grabbing and dragging the victim several feet before sexually assaulting her, Keller v. State, 586 So. 2d 1258 (Fla. 5th D.C.A. 1991); holding the victim at gunpoint while demanding money, Perez v. State, 566 So. 2d 881 (Fla. 3d D.C.A. 1990); and confining the victim in the front seat of a car during an attempted sexual battery, Hrindich v. State, 427 So. 2d 212 (Fla. 5th D.C.A. 1983). If Smith implicitly overruled these cases, then the type of constraint inherent in the commission of other crimes is sufficient to prove an additional offense of false imprisonment.
40 Smith, 840 So. 2d at 991.
41 Current Fla. Stat. §775.021(4) took effect several months after Faison came out. 1983 Fla. Laws ch. 56, §1. Before that time, Florida operated under the “single transaction rule.” The courts struggled during this time to formulate a consistent rule for deciding when multiple convictions can be based on the same facts. See Carawan v. State, 515 So. 2d 161 (Fla. 1987).
42 Smith, 840 So. 2d at 991–92.
43 The reality of concurrent sentencing may lessen the effect here; but the additional charges will still add to the sentencing score under the Criminal Punishment Code and an additional kidnapping offense may affect the defendant’s classification status in prison or eligibility for gain time.
44 E.g., Berry v. State, 668 So. 2d 967 (Fla. 1996).
45 See, e.g., Fla. Stat. §§775.0845 and 775.087 (2003).
46 The Faison test “is not an easy one to apply.” Berry, 668 So. 2d at 969. One district court judge, collecting the cases and finding there was ample precedent to support the opposing positions in many common factual scenarios, recently asserted: “The frightening reality. . . is that these types of kidnapping convictions can be affirmed or reversed at will, and based on little more than the philosophical inclination of a given panel of judges. . . . [T]he fact that appellate judges can expertly pick at nits does not justify the existence of such an elastic and ill-defined offense. . . . [T]he vagueness of this subsection, even when read in conjunction with the case law. . . , has given precious little guidance. . . . [T]here [is] no objective, clearly defined standard to establish the legal sufficiency of the charge.” Biggs v. State, 745 So. 2d 1051, 1053–55 and n.3 (Fla. 3d D.C.A. 1999) (Sorondo, J., concurring). Yet something like the Faison test is necessary, if one is to avoid the double offense problem.
Richard Sanders graduated the University of Pennsylvania Law School in 1982. He has been practicing in Florida since 1984. He is currently working in the appellate division of the 10th Circuit Public Defender’s Office.