Pope v. State

Pope v. State, 646 So. 2d 827 (Fla. Dist. Ct. App. 1994)

Court: District Court of Appeal of Florida · State Appellate Courts
Decided: December 9, 1994
Docket: No. 93-1345
Judges: Thompson
Citations: 646 So. 2d 8271994 WL 685600

Cited by 9 4 descriptions by later courts

Opinion

646 So.2d 827 (1994)

Charles Edward POPE, Appellant,

STATE of Florida, Appellee.

No. 93-1345.

District Court of Appeal of Florida, Fifth District.

December 9, 1994.

*828 James B. Gibson, Public Defender and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Wesley Heidt, Asst. Atty. Gen., Daytona Beach, for appellee.

THOMPSON, Judge.

Charles Edward Pope ("Pope") appeals his conviction and sentence for robbery [1] and kidnapping. [2] We affirm his conviction, but reverse his sentence.

Pope argues the trial court erred in denying his motion for judgment of acquittal on the offense of kidnapping. Pope's trial counsel did not preserve this putative error for appeal. There was an objection, but not on the issue that has been argued before this court. By failing to present the argument to the trial court for review and ruling, Pope is precluded from raising the issue on appeal. Reed v. State, 603 So.2d 69 (Fla. 4th DCA 1992). Furthermore, the facts support Pope's conviction for kidnapping.

The facts are the following. Pope committed a robbery by using a knife to take money from his victim, Richard Chuk. Pope then took Chuk from the point of the robbery approximately one block to his truck. At the truck, Pope took Chuk's food stamps. Under the test of Faison v. State, 426 So.2d 963, 965 (Fla. 1983), this act was a kidnapping independent of the crime of robbery. Here, the movement or confinement was not slight; it was not inherent in the crime of robbery and but for the movement, Pope would not have been able to complete the crime of robbery by taking Chuk's food stamps. Cf. Baker v. State, 639 So.2d 103 (Fla. 5th DCA 1994) (where movement and confinement of burglary victim was limited to the interior of an automobile, the activity was slight and merely incidental to the crime of burglary with an assault or battery). The court properly denied his request for judgment of acquittal.

We do, however, reverse Pope's sentence and remand the case for resentencing. After his conviction, Pope was designated a habitual felony offender [3] and he was sentenced to consecutive sentences. Because his two convictions arose out of a single criminal episode, Pope argues he can be sentenced consecutively within the sentencing guidelines or he can be sentenced as a habitual offender with no consecutive sentence. We agree. We reverse the consecutive habitual offender sentences and remand for resentencing. Hale v. State, 630 So.2d 521 (Fla. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 278 , 130 L.Ed.2d 195 (1994). At resentencing, the trial court can elect to sentence Pope to a consecutive sentence or enhance his sentence as a habitual offender, but it cannot do both. Anderson v. State, 637 So.2d 971 (Fla. 5th DCA 1994).

AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.

DAUKSCH and GRIFFIN, JJ., concur.

NOTES

[1] § 812.13(2)(a), Fla. Stat. (1991).

[2] § 787.01(1)(a)(2), Fla. Stat. (1991).

[3] § 775.084, Fla. Stat. (1991).

How later courts describe this case

Explanatory parentheticals written by citing courts — 4 in all; the most informative distinct ones are shown.

(to preserve an issue for appellate review, a party must contemporaneously object in the court below on the same ground asserted on appeal)

Rios v. State, 920 So. 2d 789 (Fla. Dist. Ct. App. 2006)
(defendant who failed to present argument to trial court for review and ruling was precluded from raising issue on appeal)

Floyd v. State, 688 So. 2d 1033 (Fla. Dist. Ct. App. 1997)
(evidence sufficient to support kidnapping conviction where defendant committed robbery by taking money from victim, then took victim one block away to his truck, where defendant took victim's food stamps)

Kent v. State, 702 So. 2d 265 (Fla. Dist. Ct. App. 1997)

Cited by 9 cases

View all citing references →

State Appellate Courts9

Relies on it most ⓘ

Pope v. State841 So. 2d 677 (Fla. Dist. Ct. App. 2003)
Weber v. State776 So. 2d 1001 (Fla. Dist. Ct. App. 2001)
Massey v. State660 So. 2d 760 (Fla. Dist. Ct. App. 1995)
Swanson v. State823 So. 2d 281 (Fla. Dist. Ct. App. 2002)
Rios v. State920 So. 2d 789 (Fla. Dist. Ct. App. 2006)
Kent v. State702 So. 2d 265 (Fla. Dist. Ct. App. 1997)

Most recent

Lugo v. State971 So. 2d 183 (Fla. Dist. Ct. App. 2007)
Rios v. State920 So. 2d 789 (Fla. Dist. Ct. App. 2006)
Pope v. State841 So. 2d 677 (Fla. Dist. Ct. App. 2003)
Swanson v. State823 So. 2d 281 (Fla. Dist. Ct. App. 2002)
Weber v. State776 So. 2d 1001 (Fla. Dist. Ct. App. 2001)
Spencer v. State721 So. 2d 457 (Fla. Dist. Ct. App. 1998)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

Depth	Case	Cited by
	Hale v. State, 630 So. 2d 521 (Fla. 1993)	424
	Faison v. State, 426 So. 2d 963 (Fla. 1983)	205
	Reed v. State, 603 So. 2d 69 (Fla. Dist. Ct. App. 1992)	6
	Anderson v. State, 637 So. 2d 971 (Fla. Dist. Ct. App. 1994)	5
	Baker v. State, 639 So. 2d 103 (Fla. Dist. Ct. App. 1994)	1

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