The Court Citied to Faison As Support for Upholding a False Imprisonment Conviction
In State v. Lindsey, 446 So. 2d 1074, 1076 (Fla. 1984), the Court cited to Faison as support for upholding a false imprisonment conviction.
The Court stated:
The district court . . . rejected the respondents' other point on appeal in which they argued that their convictions for false imprisonment were reversible error because the acts of confinement were incidental to the commission of the offense of robbery or to the assault element of the aggravated burglary offense.
The respondents now argue that this latter ruling by the district court of appeal was error.
The offense of false imprisonment was proved by evidence that the intruders confined the victim by tying her up with rope.
It was entirely separate from the element of force exerted in committing the robbery and from the element of assault relied upon to aggravate or enhance the offense of burglary. See Faison v. State, 426 So. 2d 963 (Fla. 1983).
Moreover, even if there were elements of factual proof common to two or more of the crimes, it is not clear that this would entitle respondents to the relief they seek since the matter of what statutory crimes were committed by the respondents' acts is purely one of legislative intent. See 775.021(4), Fla. Stat. (1979); Borges v. State, 415 So. 2d 1265 (Fla. 1982).
We therefore approve the decision of the district court of appeal on this second issue. Lindsey, 446 So. 2d at 1076.
This passing reference to Faison has understandably caused some confusion.
After Lindsey, several district courts applied the Faison test to false imprisonment .
Taylor v. State, 771 So. 2d 1233, 1234 (Fla. 2d DCA 2000);
Rohan v. State, 696 So. 2d 901, 903 (Fla. 4th DCA 1997);
Keller v. State, 586 So. 2d 1258, 1261-62 (Fla. 5th DCA 1991);
Perez v. State, 566 So. 2d 881, 884 (Fla. 3d DCA 1990).
However, in Chaeld v. State, 599 So. 2d 1362, 1364 (Fla. 1st DCA 1992), the court held that a jury instruction based on Faison was not applicable when a charge alleges false imprisonment.
The Chaeld court held:
This so-call Faison instruction must be given upon the defendant's request whenever the state charges kidnapping with the intent to commit or facilitate the commission of a felony under 787.01(1)(a)2. It has no application when the charge alleges that the defendant kidnapped the victim with any of the other specific intentions identified in 787.01(1)(a)1, 3 or 4. See Bedford v. State, 589 So. 2d 245, 251 (Fla. 1991) (holding that a defendant charged with kidnapping with the intent to inflict bodily harm upon or terrorize the victim is not entitled to a Faison instruction).
Because the Faison instruction is implicated only when the state is attempting to prove a kidnapping with the intent to commit or facilitate the commission of a felony, and the crime of false imprisonment by definition and as interpreted by the supreme court in Sanborn does not require proof of such intent, we conclude that the judge properly denied the appellant's request for a Faison instruction. Id. at 1364.